Flann O’Brien has a character in one of his novels, a policeman, who had spent so much time on the saddle of a bicycle that the molecules of the saddle and his bottom had become mixed and he is unclear whether he is a bicycle or a policeman.
His quandary is reminiscent of the constitutional officer that is the attorney general (AG). One would naturally suspect this office’s roots go back deep into English history.
And sure enough, the king had need of a chief legal adviser long before the office of prime minister became established.
Even more so, in contemporary Ireland there is a busy intersection between the government and the courts and legal professions and the AG's main role is to patrol this junction.
Thus, take the recent case in which an Irish judge was attacked by the Polish government for referring the question of the extradition of a prisoner to the European Court of Justice. This was because of the undermining of judicial independence in Poland. The proper response to this attack is something on which the AG's advice would be sought.
And, in the opposite direction, the Government will take the AG’s advice on the constitutionality of a law. Given the resourcefulness of litigants in turning political differences into legal cases and the judicial activism of the courts, this is of central importance.
The AG is always a successful barrister and almost invariably at least a camp-follower of the government party, thus they are trusted by both sides.
Sixth sense However, distinguished exceptions
such as Declan Costello and Michael McDowell aside, Irish AGs have not usually been politicians and thus not bloodied in the piranha fishbowl of media publicity; so their sixth sense in this pool may be undeveloped.
One recalls: the murderer arrested when he was the house-guest of a blameless AG, in 1982; the fall of the Fianna Fáil-Labour government following the appointment of their AG as president of the High Court, a decade later; a similar episode which almost happened last year. And now this.
Yet what Séamus Woulfe said was perfectly sensible and would have read well, say, in his memoirs.
Thus, first, to go back to the idea of the AG as a link, he has useful experience on which to draw, in the selection of judges. Indeed attorneys have been doing this informally for generations. Was it not perverse to amend the Bill to exclude the AG from membership of the appointments commission?
Secondly, among the Office of the Attorney General’s diverse responsibilities is the drafting of Bills. The rules for the interpretation of Acts are very literal and assume, not always correctly, that the parliamentary draftspeople have observed extremely high standards of internal consistency, coherence and non-repetition when drafting a law.
The significance of this is that a Bill may leave the AG's office in good order. Yet, where, as in the present case, there are numerous major amendments, during its passage, through the Oireachtas, slips may occur.
It is true that this may be avoided, if the machinery works perfectly, that is: with draftsmen working at weekends; and good communication (!) between all the parties – AG’s office, the relevant Government department and Minister as well as the judges who like to be kept involved,
Amendments
But perfection cannot be counted upon and, where there are amendments, errors may creep in. These may be errors that are not noticed for many years. At worst, during this period, cases will have been decided, by a judge, who was not validly appointed.
This could lead to no end of trouble. Woulfe was right to have in mind this danger.
Thirdly and unexpectedly, the least troublesome aspect may be what the AG meant when he referred to the “dog’s dinner”. In particular fact, this phrase was directed at the amendments made at committee stage. These would require the appointments commission to rank, in order of preference, recommended candidates for a judicial position. The significance of this is that there is an argument, that such a semicontrol would undermine the Government’s constitutional discretion, in advising the President whom to appoint.
But the essential point here is that such an argument is well-known and, in all probability was the reason why the AG chose not to include this type of provision in the Bill in the first place.
Quite possibly, senior counsel Jim O'Callaghan TD, the Fianna Fáil justice spokesperson, had all this and the mischief to which it could lead in mind when he persuaded the committee to add it to the Bill. No doubt about it: rigorous horse-trading will be necessary to get it excluded at report stage.
Squabble
Lurking behind this squabble is a bigger prize. As the dogs in the street know, an open, equitable system of judicial appointment has been introduced long since in most other states. In the UK in 1998, for instance, at the start of Tony Blair’s term of office, it was accepted as necessary here, for example, in submissions by judges, barristers and solicitors to the inquiry set up when
Alan Shatter
was minister for justice.
But the points that do remain in contention are whether (as provided in the present version of the Bill) the commission should have a lay majority and the chairperson should be a layperson.
On each of these points, the legal establishment – a pressure group that would make Ibec look as if it had come down in the last shower of rain – is looking for changes in the Bill.
Look out for fireworks at the report stage of the dog’s dinner.
David Gwynn Morgan is emeritus professor of law at UCC