McDowell's arrival as AG a most significant assignment

The appointment of a new Attorney General might normally generate about as much excitement as the arrival of a new assistant principal officer in the Labour Market Vital Statistics Division of the Central Statistics Office. Attorneys General are generally valued for their anonymity and the worst you can say about one of them (specifically, Harry Whelehan) is that he was controversial. But anyone with the honour to have been described by Charles Haughey as "the nastiest piece of goods that has ever crawled into this House" can't be all bad. And if he lives up to half of what he has placed on the public record, Michael McDowell's arrival as the new AG could be easily the most significant appointment that this Government has made.

He takes office at a time when the unfairness of the way the law functions has never been more obvious to the general public. We have had the Sheedy affair in which the operation of class bias and of influential connections has been glaringly exposed but not properly explained. We have had the tortuous revelation of corruption and criminality at high levels within the political, business and administrative systems while not a single such wrong-doer has been prosecuted. The public has been given every reason for cynicism.

Few people have been more outspoken about all of this than Michael McDowell. He campaigned fearlessly and passionately against the abuse of the passports-for-sale scheme which he memorably described as the expression of a "squalid little banana republic with a Papa Doc Duvalier regime". He rightly described those who seek accountability in Irish politics as "like condemned men scratching a message to posterity on the wall of our cell". And most importantly he has seemed genuinely outraged by the double standards evident in the workings of the law.

Fewer than five years ago, when the Fianna Fail/Labour coalition was in power, Michael McDowell, then, of course, in opposition as a Progressive Democrat TD, had the guts to ask a question that went right to the heart of public trust in the administration of justice in Ireland. He was speaking, on September 2nd 1994, in the Dail debate on the report of the Tribunal of Inquiry into the Beef Processing Industry. That report had found, among a number of other serious abuses, the operation of a huge and systematic tax evasion scheme within one of Ireland's largest indigenous companies, Goodman International.

Michael McDowell's words are worthy of extensive quotation: "Will any of the top brass in the Goodman organisation, who engaged in a massive criminal conspiracy to defraud the Exchequer and taxpayers, and who, because of that, are open to be tried, convicted and sentenced to any term of imprisonment up to life imprisonment, darken the District Court door? "Will any of them spend a night in jail and hang their Armani suit on the back of the cell door in Mountjoy? They will not. Not a single person will be brought to account for the most substantial and highly organised tax evasion in this country. . .Is that not strange"?

Michael McDowell went on to note the gross disparity between this kind of treatment for wealthy and powerful individuals on the one side and criminals from less privileged backgrounds on the other: "In the courts, I have seen poor individuals whose dishonesty has led them to be prosecuted and imprisoned for diddling the dole. I see in this report a finding by a judge of the High Court, the President of the High Court no less, that the top brass of the Goodman organisation carefully and with deliberate intent, established and put in place the greatest single revenue crime that has ever been detected in this country and they are not apparently accountable for it".

Mr McDowell concluded his speech by suggesting an explanation for the silence of Fianna Fail on this matter: "I would wait with bated breath to hear one word of criticism of the Goodman organisation from some senior source in Fianna Fail. We have never heard it and I dare say we never will because the reality is that they were bought and stay bought. They know that Goodman knows where the bodies are buried; they dare not even rebuke this man because they know in their hearts that he has information on them and that he would bring them down like a group of skittles if the truth ever emerged."

It would, of course, be naive to expect this latter sentiment to be repeated by the Attorney General to a Government led by a man who was, at the time this claim was made, a senior Fianna Fail minister. But it is surely not naive to hope that Michael McDowell's broader commitment to equality before the law, to ensuring that corruption is really treated as a crime and to ending banana republicanism once and for all will be reflected in his conduct of the office he now holds.

He is not, let us remember, a mere creature of those who have appointed him. The Attorney General is effectively a part of the political system.

But he or she is, as the Supreme Court has repeatedly made clear, and as Mr Justice Kingsmill Moore expressed it in 1977, "in no way the servant of the Government but is put into an independent position. He is a great officr of State, with grave responsibilities of a quasi-judicial as well as of an executive nature. . .It may be his business to adopt a line antagonistic to the Government. . ." The courts have, moreover, recognised a rather undeveloped but potentially significant function for the AG in "the assertion and protection of public rights".

That role can and should be developed. The AG no longer, of course, initiates prosecutions (a function long since delegated to the Director of Public Prosecutions), runs the courts or investigates crimes. But he does occupy a crucial position between the apparatus of the State on the one side and the public interest on the other. In recent years, AGs, instead of firming up that position, have tended to confuse it.

We have had, on the one hand, an insistence that the AG represents the State apparatus and not the public. And on the other we have had, as in Harry Whelehan's fateful decision to initiate the X case, an insistence that the AG is obliged to act independently on the basis of constitutional imperatives. As a result, the role of the AG in "the assertion and protection of public rights" has been blunted.

Sharpening it to the point where it becomes an effective weapon in the fight for a real republic is not a job for a quiet, cautious lawyer. But it may be just the job for Michael McDowell, for whom quietness and caution have never been paramount virtues. If he is as serious and passionate about ending the scandal of impunity for the rich and powerful, Mountjoy may yet see its first Armani jacket hanging on a cell door.