Lucinda, Jim O’Callaghan And The Unpublishable


00159198jimFrom top: Lucinda Creighton TD and Councillor Jim O’Callaghan.

Ding dong.

It’s a Dublin south east barrister-off.

Following Renua leader Lucinda Creighton’s article ‘Why Most Attorney General Advice Needs To Be Made Public’ in Monday’s Irish Times and Fianna Fáil Dublin City Councillor Jim O’Callaghan’s response ‘Renua’s Plan To Publish AG’s Advice Is Misguided‘ in Tuesday’s paper both appeared this morning on Today with Sean O’Rourke.

Wince at the rugby analogy.

Stay for Legal Coffee Drinker’s uncompromising analysis [Below].

Lucinda Creighton: “We’ve been very clear about this, both in relation to our proposals in relation to cabinet minutes and in any utterances in respect of the Attorney-General’s advice, that anything, that threatens national security whether it’s defence related security or whether it’s in relation to criminal justice or whether it’s in relation to the economic security of the State, of course in those circumstances the A-G’s advice cannot be published.
But, for example, there are countless examples where governments have hidden behind the Attorney General’s advice. One example that I cited in my article in the Irish Times is the example of upward-only rent reviews. Now, when the now Taoiseach, then Leader of the Opposition Enda Kenny cited legal opinion and legal advice from eminent constitution lawyers suggesting that the abolition of upwards-only rent review clauses could be achieved and would be achieved in Government. Now, no sooner was he in Government than he started hiding behind the Attorney-General’s advice, and this isn’t unprecedented, if you look around the world at other similar jurisdictions, for example the United States, you can actually go on to, the website of the Attorney General in the United States, you can read legal opinion by the Attorney -General and the…”

Sean O’Rourke: “So why not here, Jim O’Callaghan?”

Jim O’Callaghan: “Well first of all the position in the Attorney-General in the United States is completely different to the position of the Attorney-General here. The Attorney-General in the United States is an executive office holder the Attorney-General here is a legal adviser to the government. To deal with Lucinda’s point about upward only rent reviews this is a prime example of where we should not release the Attorney-General’s advice. There are large pension funds who have huge amounts of interest in ensuring that there wasn’t legislation brought in prohibiting upwards only rent review sand if they had been given access to the legal advice of the Attorney-General they would have used it in order to defeat any challenge they had to the State in terms of the legislation that was brought in. I think it’s important to establish, Sean, what’s the point of principle here in terms of when should the advice of the Attorney-General be given out, I accept that there may be one or two occasions when it should be given out but the point of principle should be that if there is litigation against the State or the threat of litigation against the State then the advice of the Attorney-General should not be given out. This is not about transparency, this is not about government in the sunshine this is about protecting the interests of the Irish people who will be exposed to huge damages claims by large tobacco companies by big pensions funds if we have the situation where we’re giving the legal advice we’ve got to the other side so that they can look for money from the State.”

Creighton: “Jim is citing a very very narrow number of cases the reality is that Attorney-General’s advices are constantly being used and we all know that lawyers differ and you can, you know, on the upward only rent review subject, for example, Gerard Hogan who is arguably the leading constitutional lawyer in the State gave absolute contradictory advice to that of the A-G. Now I cannot understand why Jim, and it would appear Fianna Fail, are so fearful of debate and teasing out these issues.”

“Now on that point Jim O’Callaghan, what would have been wrong with the Government acceding to Micheal Martin’s request latterly in relation to the proposed legislation on fatal foetal abnormalities?”

“The principle is the same in every example that Lucinda has put forward. The downside is that if the other side in litigation gets access to your legal advice they go before a High Court judge and say, listen, we know in fact what the Attorney-General is advising.”

O’Rourke: “So is Micheal Martin wrong in that instance?”

“He’s perfectly entitled to ask for it. He’s perfectly entitled to ask for it as a politician and the Government are perfectly entitled to say no.”

Creighton: “Well at least the public are perfectly well aware now that whatever Micheal Martin may say in Opposition he has absolutely no intention of publishing any A-G’s advice in government.”

O’Rourke: “You’re potentially his A-G as you are the legal adviser to the FF Front Bench.”

“There are circumstances, there are very there are very limited circumstances where the advice of the A-G should be published. For instance if a case had been settled by the State and if large amount of money had been paid by the State to the other side in litigation and there was public outcry about it then in those circumstances the A-G and the Government could make the decision to publish that advice, the reason why it would be acceptable in that situation is that there are no impending proceedings. …. the reason why you don’t publish it is not because you’re opposed to transparency or opposed to government in the sunshine, the reason you don’t publish it is because it gives a huge advantage to your opponent in litigation if they have access to your legal advice it is like the Irish rugby team going into an international rugby match and in advance of the match handing over their line out calls to the opposition, it is a crazy idea.

Creighton: “In the vast majority of cases the public interest is best served by ensuring that documentation, that advices that are available and the basis on which governments take decisions are actually available to the public…”

Listen here


What for pity’s sake are they blatherin’ on about? Do they even know themselves?

We phoned Legal Coffee Drinker to find out what it’s all about.

Broadsheet: “Legal Coffee Drinker, what’s it all about?”

LCD: “Lucinda Creighton is saying that, as a general rule, the advices of the Attorney-General should be made publicly available. Jim O’Callaghan, on the other hand, is saying that it should only be published, if at all, in exceptional cases, because of the risk that it might be used against the government in litigation.”

Broadsheet: “But surely not all advices given by the A-G relate to matters of litigation?”

LCD: “Indeed. As stated on the Attorney-General’s website, the Irish Attorney-General has a dual role, firstly, dealing with litigation by or against the State and, secondly, advising the Government on questions of public interest (e.g. pending legislation).”

Broadsheet: “So shouldn’t the second category of advice be publishable?”

LCD: [inserts Nespresso capsule] “I think by ‘litigation’ Mr O’Callaghan means not just pending litigation but also possible future litigation which might arise, for instance, in relation to to legislation on which the Attorney-General has advised. He states for instance, that disclosing the Attorney-General’s advice on the constitutionality of abolishing upwards-only rent review clauses would give pension funds ammunition in litigation taken by them against the State.”

Broadsheet: “Is this correct?”

LCD: “No, for the following reason. Not only is there no existing litigation by pension funds against the State in relation to legislation abolishing upwards-only rent review clauses, there’s absolutely no threat of any such litigation because, on foot of the Attorney-General’s advice, the legislation in question was never passed.”

Broadsheet: “But Mr O’Callaghan says ‘there are large pension funds who have huge amounts of interest in ensuring that there wasn’t legislation brought in prohibiting upwards only rent review sand if they had been given access to the legal advice of the Attorney-General they would have used it in order to defeat any challenge they had to the State in terms of the legislation that was brought in.’ “

LCD: [drains cup] “As set out above, such pension funds have no reason to sue the State at all, no legislation damaging them ever having been passed and the advice given, in fact, having been extremely beneficial to them. And, incidentally, talking about a litigant using information to defeat their own challenge makes no sense at all. I think there may have been some confusion here…”

Broadsheet: “Were there any other reasons given by Mr O’Callaghan to justify the decision not to disclose the A-G’s advice on upwards-only rent review clauses?”

LCD: “No. In his article in the Irish Times…Mr O’Callaghan says: “[o]utside of the area of litigation, should the legal advice of the Attorney General always be published then every foreign state will know every issue of international legal concern that is being considered by the Irish government,” but this can hardly apply to advice on the very domestic subject of rent review clauses.”

Broadsheet: “So Mr O’Callaghan’s argument doesn’t stand up?”

LCD: “Not on the reasoning given by him, no.”

Broadsheet: “Sean O Rourke says Mr O’Callaghan might (cough) be the next Attorney-General?

LCD: [pause] “Your point?

Broadsheet: “On the evidence presented, M’lady. it is an appalling vista. Is it not?”

LCD: “Why are you talking that way?”

Broadsheet: “Sorry.”

LCD: “I don’t dabble in politics or conjecture.”

Broadsheet: “Nor tay neither!

LCD: “Are we done?

Broadsheet: “We are. Thank you Legal Coffee Drinker. Forgive my boisterousness.”

LCD: * click*

(Photocall ireland)

27 thoughts on “Lucinda, Jim O’Callaghan And The Unpublishable

  1. Bacchus

    Obviously Jim has been sent out to ridicule Lucinda’s ridiculous plans to publish AGs information but has failed to give it much thought… which is odd because it really wouldn’t take much to show how stupid her populist nonsense is.

  2. Zarathustra

    Bs, I’ve wondered for a while now, how you can tell the finer details of LCD’s mannerisms, or idiosyncracies, like when, for example, LCD is draining the last of their coffee, or inserting a Nespresso capsule, especially when you’re on the phone to her/ him? Unless you’re using Skype, in which case, Mea Culpa :) [or, one of you is getting it Pro bono, which isn’t my business…]

  3. Ppads

    This may be a single issue but many successful businesses have been slaughtered on the alter of upward rents. It’s not like future pensioners are going to feel the impact either way. Creighton is on the ball and fair play to her.

        1. Bacchus

          Yep. Creighton is prattling on about making AGs advice public (not possible and not wise) it was Jim who wrongly brought in the issue of rent increases. Creighton is right wing enough to let the market decide it’s own rents.

  4. GOS

    He played for Leinster and probably uses rugby analogies all the time.

    LCD (and you) pick on one example but omit the wider point – how do you know in advance what will lead to litigation and what will not? And on that one example, international funds would be very interested indeed in the legal advice on such an issue because they own substantial amounts of commercial property in Ireland and might very well take a case if this or a future government banned upward-only rent reviews.

    And on the international point – governments regularly sue or threaten to sue each other on ‘domestic’ matters because they represent the interests of their companies invested in other countries and, therefore, deeply interested in ‘domestic’ issues.

    And then, finally, there is the point of people going fishing for cases by systematically reviewing AG advice.

    It’s a more complex and serious point than you or LCD have represented it.

  5. Salmon of Nollaig

    And on that one example, international funds would be very interested indeed in the legal advice on such an issue because they own substantial amounts of commercial property in Ireland and might very well take a case if this or a future government banned upward-only rent reviews.

    To play out your hypothesis more fully – surely they would do so anyway, whether or not the advice were published in full. – because the Government has already given them good enough reason to do so by saying that the A-G has taken the view that upward-only rent reviews are unconstitutional.

    A bit unfair to blame rugby for O’Callaghan’s obtuseness, surely?

    1. Joe the Lion

      No no no always rugby’s fault it’s the inbred groupthink culture that it breeds like a particularly virulent strain of pencillin resistant bacteria on the dishcloth

    2. GOS

      There is no circumstance in which it is beneficial to the state to supply its legal advice to actual or potential litigants against it in the manner Creighton suggests – that’s the core point. The need to provide more information on the legal basis for a decision is a different matter – but no one, anywhere in the world, gives the other side open access to their legal advice.

      On upward only rents – let’s say the AG supplies advice which sets out pros and cons (as they should) including areas potentially open to challenge. How does it help the Irish state to hand this over to a potential litigant?

      I like the LCD pieces on Broadsheet, but this did not do the subject justice.

      1. Legal Coffee Drinker

        GOS, the point being made was that he was talking nonsense on the rent review issue, which undermined his entire argument. You put it much better than he did.

        I agree that there would have to be controls on the disclosure of any A-G’s advice… no argument there.

        The issue is the nature and extent of the controls.

        The ‘potential litigation’ argument would in effect preclude ANY disclosure of Attorney-General’s advice except in the context of a settlement (even then, if you follow through this argument, disclosure of advice might be precluded by the risk of potential litigation from other persons in the same or similar position as the party settled with).

        Okay, you might say, so, fair enough, isn’t that the case in relation to legal advice generally, why should the relationship between the A-G and the Government be any different from the relationship between any individual and his legal adviser (where, as I’m sure you know, legal advice given is privileged from disclosure)?

        I’d make two points in response to that. Firstly, there is a difference, in that the Government, although a ‘client’ of the A-G, is also the Government of the State and therefore there are public interest concerns which don’t arise in the normal client-lawyer relationship. Secondly, look at the exceptions to legal advice privilege – they permit this privilege to be departed from in cases of public interest. So it would not be inconsistent with any ‘potential litigation’ argument to allow public interest concerns to ‘trump’ it in certain cases.

        My own view is that it is worth teasing out in full the implications of disclosing the A-G’s advice on the constitutionality of proposed legislation… at least in circumstances where the A-G’s advice is that the legislation is unconstitutional, and because of this it hasn’t been passed. We’ve had two recent situations of this – rent review and fatal foetal abnormalities. Is there really any increased risk of litigation, in circumstances where the legislation hasn’t been passed? What do you think?

        That’s the other point made by the piece. It’s very easy to throw out the label ‘potential litigation’, but it’s important to think any given case through to see if it’s actually covered by this label. Hope this helps!

        1. GOS

          Such quality reply needs acknowledgement.

          I think the issue of the public interest is addressed through the disclosure of materials related why a decision was taken. This does not require AG’s advice – rather it contains the ‘finding’, if you will.

          So, on the rents issue, were the state to decide to legislate it would set out a legal justification for doing so and Ministers would read into the record the legal basis for the proposal and why they believed constitutional property rights were not being infringed.

          The public interest exemption to cabinet confidentiality and the discoverability of all other papers surely deals with this?

  6. edalicious

    I feel like LCD might be a bit of a hottie. Not sure why but I suppose I’ve always had a bit of a thing for powerful women.

  7. brownbull

    Just because there has not been litigation does not mean that large pension funds or other investors have not made strong legal representations to the relevant department on the issue of rent reviews – either way even if you can dismantle the rent review analogy it doesn’t take away from the key point being made – that the state shouldn’t confer an advantage upon those who would seek to challenge it for their own individual gain.
    I’m not sure if LCD can see the wood for the trees on this one, he/she always seems to approach these issues with a political bent – that the government position is wrong
    I think the interests of the State should come first – even if you dislike the current government

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