The Attorney General is one of the most powerful and influential people in the State. She is also one of the least accountable. If she screws up, she does not have to answer to anybody except the Taoiseach and then only in private. Máire Whelan is widely respected, liked and admired. But she came very badly out of the Fennelly report into the resignation of the former Garda commissioner, Martin Callinan. And she comes badly out of the debacle over the establishment of a commission of inquiry into the Siteserv controversy that did not have the legal powers to do the job.
This happens – people get things wrong. But in a democracy it is crucial that when it happens, the person responsible has to explain how and why things went so badly awry. Yet a combination of colonial overhang, legal pomposity and political convenience gives us a powerful public servant who does not answer to the public.
The Fennelly report raised very serious questions about the AG’s judgment. She gave seriously inconsistent evidence to the inquiry. She first told the judge that “decades of recording phone calls in and out of Garda stations [was] in complete violation of the law, with total disregard for the requirements of ministerial authorisation and of the rights of the citizen”. She said “this was criminal activity being engaged in by An Garda Síochána” and a “most grievous matter”.
Startlingly, she later made a written submission to the inquiry that presented what the report termed a “substantially modified” view in which she said her previous “trenchant language” had left the commission with an “erroneous impression” as she meant only that there was a “potential illegality”.
The gulf between these two positions is disturbingly wide.
In a functioning democracy, citizens would be able to hear from the holder of such a pivotal office how she came to so substantially modify her evidence to an inquiry established by the Oireachtas.
A Dáil committee would take her through the events and her reaction to them and give her the opportunity to explain herself. She might, after all, have had very good reasons for her different views, and changing one’s mind is not inherently ignoble. But the very suggestion that this might happen was treated like a proposal for an orgy in a cathedral.
Pomposity
A fug of pomposity surrounds the office of Attorney General . The courts call the AG a “great officer of State” and an “independent constitutional officer”. But in practice, the system does nothing to make the AG really and truly independent of politics. We end up with the worst of both worlds – a highly political office sealed off by a fiction of complete political independence. The AG can’t answer questions because that would threaten an independence the role does not in fact have.
The odour of sanctity that hangs over the office like a protective veil is really a cheap perfume. The role is utterly political. Bizarrely, the AG can be a sitting TD – John Kelly fulfilled both roles in 1977 – and thus subject to a party whip. The AG is appointed technically by the President but in reality by the Taoiseach personally. Is it mere coincidence that the Taoiseach habitually finds the best person for this "independent" office among the ranks of supporters of one of the parties in power?
Once appointed, the AG serves at the whim of the Taoiseach, who can sack the AG for any “reasons which to him seem sufficient”. Her tenure is entirely subject to the arbitrary whims of the Taoiseach.
If this seems like a throwback to a colonial monarchy, it's because it is. The office of AG was recognised in the Ministers and Secretaries Act of 1924, but it was not created: it assumed all the "business, powers, authorities, duties and functions" of the colonial-era office of Attorney General for Ireland. The 1937 Constitution further recognised the office, but it didn't create any mechanisms to make it accountable. Essentially, the Constitution incorporates an old colonial institution into the governance of a republic without making it fit for democratic purpose.
And yet this office exercises vast political power. How often do we hear that something that is urgently needed can't be done because of the advice of the AG? In effect, the AG has become a one-person Supreme Court, deciding in advance that legislation can't be proposed because, in the view of that single individual, it might be unconstitutional. Politicians, in turn, hide behind the AG: Eamon Gilmore's new book, for example, justifies the grotesque 14-year prison term for any woman using abortion pills because the AG decreed it to be necessary.
Unaccountable
We know from repeated experience that unaccountable power makes for bad governance. We see bad governance at work in the Fennelly report and we see it again in the fiasco of the Siteserv inquiry. A common thread is the pompous pretence that the AG is a special creature, above politics and above accountability. This new debacle must be a catalyst for legislation to make the AG answerable for her actions. Or would that have trouble getting past the AG as well?