Playing Devil’s Advocate

Fianna Fail Justice Spokesman Jim O’Callaghan (left) and Regina Doherty, Fine Gael Minister for Employment Affairs and Social Protection

This morning.

Fianna Fáil’s Jim O’Callaghan and Fine Gael’s Regina Doherty spoke to Seán O’Rourke on RTÉ Radio One.

It followed a front-page story in today’s Irish Independent, by Shane Phelan, about Mr O’Callaghan having previously represented former Sinn Féin president Gerry Adams.

Mr O’Callaghan accused Ms Doherty as having been “wheeled out” by Fine Gael’s press office while Ms Doherty repeatedly said it was all about “trust”.

From the interview…

Jim O’Callaghan: “This applies to every barrister in the country. You’re obliged to represent a person who seeks your legal services simply because you’re doing that doesn’t mean you’re endorsing their politics.”

Seán O’Rourke: “Are you saying then, if you were to decline the offer…barristers all the time decline certain offers of work for various reasons. Are you saying had you declined the opportunity to work for Gerry Adams, you would have been discriminating against him?”

O’Callaghan: “Can I say this to you as well, you will know, as well Seán, from your knowledge of the law, that I am not permitted to talk about individual cases. But I can talk to you in the generality about it. It’s a breach of the constitution for me to talk about individual cases. But can I say this: if somebody seeks your legal services and the way the system of justice operates in this country, is that if somebody, a solicitor, comes to a barrister, looking for that barrister to represent a client, the barrister must act. Unless there is some reason as to why the barrister cannot act.

“And when people approach me, whether it’s the Fine Gael ministers or indeed Sinn Féin politicians, or SDLP politicians, I will represent them to the best of my ability. And obviously things have changed since I became a TD in 2016.

“And now because I’m a national spokesperson it would be more difficult for me to represent certain people because it would probably be against their interest to help me represent them. But, listen, if Regina Doherty ever gets into legal difficulties, I’d be happy to represent her to the same way I represented previous Fine Gael TDs and Fine Gael ministers in the past.”

O’Rourke: “Regina Doherty?”

Regina Doherty: “Now there’s an offer, Seán, ha? You know what, I have huge respect from Jim and he is an eminent barrister and has a huge reputation and that’s not to be taken away. But the code of conduct does also allow whether a conflict of interest, or a likely conflict of interest might arise, for someone to step away from the case.

“But what we have here is a case of Fianna Fáil want us to do what they say not what they do. And you just said Seán, that the consistent message coming from Fianna Fáil, that they won’t go into Government with Sinn Féin.

“Unfortunately that’s not the case. We have a long litany of people in Fianna Fáil that have said over the last number of years that they will go into Government with Sinn Féin…”

O’Rourke: “No but can we discuss that…

Talk over each other

O’Rourke: “No, sorry, Regina O’Doherty, can we just confine this conversation to Jim O’Callaghan representing Gerry Adams and what that might mean for Fianna Fáil going into Government with Sinn Féin if it means that at all.”

Doherty: “What’s important about this, Seán, is that you have to be able to trust in what people say. Before people go to the door, or go to the ballot box on Saturday or they make that decision, I think that’s fair for them to know, can they trust what Fianna Fáil say and is it fair for Jim O’Callaghan to come out and lambaste Sinn Féin for their policies and for their past, political manoeuvres and seemingly be able to take their coin and do their work.

“And it’s not just Jim, to be fair. It’s John McGuinness, it’s Kevin O’Keeffe, it’s Mary Butler. Even Micheál Martin himself, in December 2017, said he’s not saying ‘never’ about going into Government with Sinn Féin. So the only people you can trust here that absolutely, unequivocally will not go into Government with Sinn Féin is Fine Gael.”

O’Rourke: “Jim O’Callaghan?”

O’Callaghan: “Well I think, with all due respect to Regina. This is a fairly low blow. They’re trying to conflate work done by a barrister who subsequently becomes a politician with work done as a politician. Under no circumstances will Fianna Fáil be going into Government with Sinn Féin.

“Simply because in the past I have represented Sinn Féin politicians, does not mean that I’m going to be saying to Micheál Martin ‘let’s go into Government with them’. Just as because I represented Fine Gael politicians in the past doesn’t mean I’m going to say to Micheál Martin ‘let us get in with Fine Gael’. The reality is and the public understand this. The function of a barrister is to represent fearlessly the person who seeks their legal services. And when you’re asked to represent somebody, you must represent somebody.”

O’Rourke: “Are you saying this, Jim O’Callaghan, are there two of you? I mean there’s Jim O’Callaghan the barrister and Jim O’Callaghan the politician.”

O’Callaghan: “Well, no. There aren’t two of me. There’s one of me. But I did have a life before politics, unlike some people in politics and I do have experience working as a barrister and the administration of justice. And I think that it’s extremely important for the administration of justice that we do not have a situation in this country that operates say in the United States, where lawyers become very partisan and lawyers will only represent people with whom they feel an affinity. And what happens then is that you get lawyers making public comments about their clients.

“We don’t do that in this country and it is very important that the independence of the Bar is maintained. Any person who represents, I represent, I’m not affected in any way by their representation of them. My politics aren’t represented by my representation of them and my views aren’t represented…”

O’Rourke: “And did you…”

Talk over each other

Callaghan: “I’ll just finish this Seán. I was asked to do a job in the same way, for instance, if a patient goes into Dr James Reilly or into Dr Leo Varadkar and sought treatment – that patient is entitled and would get the best treatment from those doctors because those are acting professionally.

“Similarly, anyone who comes to me, irrespective of their politics, if they come seeking my legal services. I give them the best treatment possible.”

O’Rourke: “And there’s also the point, Regina O’Doherty, that, according to the Independent, Jim O’Callaghan began representing Gerry Adams in 2015, when he was not a member of Dáil Éireann.”

Doherty: “Which is why, in the code of interest, the conflict of interest, or the likely arrival of a conflict of interest is a reason that you would refute the case. Jim was desperately attempting to be a TD in 2015 and [inaudible]. This is about trust, Seán.”

O’Rourke: “No, no, hold on a tick, now. I mean, just the point he makes…on the point he makes: you know, would Leo Varadkar, in his days as a doctor, have refused somebody who came in looking for treatment simply because that was a Sinn Féin person?”

Doherty: “No, but Leo Varadkar is not going out the next day and lambasting the people that’s he representing. That’s the difference here. So you have to ask yourself the question: can you trust Fianna Fáil when they tell you that they won’t go into Government with Fianna Fáil, or with Sinn Féin?”

“When they are consistently telling you, Pat ‘The Cope’ Gallagher, Darragh O’Brien, Anne Rabbite, you know there’s a reason Micheál Martin is a sole trader in this general election campaign. It’s because you can’t trust the Fianna Fáilers to be let out on the plinth because they let the cat out of the bag.”

“This is all about trust….”

O’Rourke: “Regina O’Doherty, just as a matter of interest, I mean are you, as a Fine Gael TD, are you accusing Jim O’Callaghan of double jobbing as well?”

Doherty: “No, I think there’s lots of TDs who have jobs. I think the only people who are precluded from having a job, a second job, are actual ministers. So that’s not an issue…”

O’Rourke: “Ok.”

Doherty: “This is about trust, Seán.”

O’Callaghan: “I’m sorry. This is about politics. This is about a general election taking place on Saturday. This is about a story coming out the day in advance of the general election. And it’s difficult for me, Seán. Because I’m not allowed to comment upon individual cases. So that means I can’t really dispute Regina’s claim that there’s a conflict of interest here, you know, the circumstances of the case in which I previously represented a person.

“I’m not going to talk about the case but all I would say is the public is aware that a barrister is asked to represent a client and does so without fear or favour and without any concern for the politics of clients.

“And that is something that we need to maintain in our independent legal system.”

O’Rourke: “And before you go mentioning Pat ‘The Cope’ and all the rest…”

Talk over each other

Doherty: “…and I won’t list off the names because I think they’re well rehearsed. A barrister is also justified when [inaudible] a case, where there is a conflict of interest arises or likely to arise.

“And I think Jim, in fairness, in 2013 you were on the ticket to be a Fianna Fáil TD in your constituency and you were successful in the 2016 election. [Inaudible]. I didn’t write the story this morning, I don’t know who did. But this is about a matter of trust and whether you can be trusted to say what you do. You need to walk the walk and talk the talk.

“So that’s what this is about.”

O’Callaghan: “Well now, Regina, you talk about a conflict of interest. You can’t state what it is. People come to me, all the time, looking for…

Talk over each other

Doherty: “No, what it is is you’re saying one thing and doing another. That’s what it is. It’s immaterial what the court case is about, Jim.”

O’Callaghan: “Regina, you know…”

Doherty: “The court case is irrelevant, this is about you. This is about whether you’re willing to walk the walk as well as talk the talk. That’s what this is about.”

O’Callaghan: “Regina you’ve just been sent out by Fine Gael press office to try and inflict some damage upon me…”

Doherty: “Excuse me, do not dare insult me…”

O’Callaghan: “I’m not trying to insult you.”

Doherty: “I am a public representative for 11 years and I’m well entitled to make representations on my own behalf and on the people who are going to vote on Saturday because you’re dead right: this is about the election on Saturday. But it’s about whether people can trust Fianna Fáil when they say they won’t go into Government with Sinn Féin.

“Because it’s clear now that they can’t. And you’re not on your own Jim. You’ve a long list of your colleagues who’ll go into power with Sinn Féin because they don’t really care who they go in with. They just want power.”

Later

O’Rourke: “Is there an element of desperation with Fine Gael wanting to score political points on this today?”

Doherty: “Who broke the story Seán? Because I don’t know who broke the story. I only reacted to it at about 6.30am, 6.45am this morning.”

O’Rourke: “Yeah, by Shane Phelan [Irish Independent journalist] who broke another important story about Fine Gael which was the Maria Bailey story about six or eight months ago.”

Doherty: “So clearly he’s a very good journalist.”

O’Rourke: “Yeah, but I mean, in reacting to it…”

Talk over each other

Later

O’Rourke: “You’re drawing the conclusion that because Jim O’Callaghan worked as a barrister for Gerry Adams in a case that had nothing to do with politics, that therefore he cannot be trusted when he says ‘Fianna Fáil will not go into Government with Sinn Féin?”

Doherty: “The conclusion I’m drawing, Seán. Is that you have to talk the talk and walk the walk.”

O’Rourke: “There you are, Jim O’Callaghan?”

O’Callaghan: “Well I don’t really understand the point. Every day of the week, barristers represent people who are in trouble and who are perceived in a very negative light by the public. It is extremely important that those barristers continue to represent people who are before our courts.

“If they don’t, we end up having a marginalised justice system in this country. Like just because a barrister is representing somebody down in the criminal courts today it doesn’t mean that that barrister in some way is endorsing the criminal act of which they have been accused. Like it completely undermines the system of justice if you start imputing to a barrister representing a client the actions or background of that client.”

Later

O’Rourke: “[After he became a TD] You could have handed over your brief to another colleague.”

O’Callaghan: “All I can say to you is: you don’t know what happened in the case that’s on the front page of the Irish Independent today after I became a TD and I can’t tell you because I have a duty of confidentiality and the code of conduct precludes me from talking in public.”

O’Rourke: “But can you see, perhaps even in appearance of hypocrisy here?”

O’Callaghan: “No, none whatsoever. Like there was a great barrister up in Northern Ireland called Des Boal, he represented very many people who were accused of membership of the provisional IRA. He was the founding member of the DUP. The legal system in this country has always operated on the basis that barristers, irrespective of their politics, will represent people from any background.

“And I know there aren’t senior counsel Fine Gael TDs at present but there was a long tradition of Fine Gael senior counsels who also operated as TDs and it was always the case that the Irish Bar, that if a Fianna Fáil minister was in difficulty, they would go and seek the advice of a Fine Gael senior counsel to represent them. That’s the tradition that exists in the Irish Bar.

“That you represent people, irrespective if you disagree with them or irrespective of whether their politics are different to yours. And it’s simply unfair and wrong for Fine Gael to suggest that, simply because I represented individuals who have different politics to me, that I now adopt the policies of those individuals.”

Listen back in full here

Earlier: Well Now

UPDATE:

Just before 2pm, when the radio and television moratorium on election coverage began, the Council of the Bar of Ireland released the following statement:

“It is the duty of barristers to be independent and free from any influence, especially such as may arise from their personal interests or external pressure, in the discharge of their professional duties as barristers.

“Barristers cannot discriminate in favour of or against any person availing, or seeking to avail, of the services of the barrister on the grounds of race, colour, sex, sexual orientation, language politics, religion, nationality, national or social origin, national minority, birth or other status.

“This is detailed in the Code of Conduct of The Bar of Ireland, to which all members of the independent referral bar are bound.

“It is in accordance with the provision that everyone is entitled to access to justice, which is central to trust in the Irish legal system and the rule of law.”

The fundamental importance of an independent referral bar (The Bar of Ireland)