Tag Archives: Attorney General

This morning.

At Government Buildings.

Family members and friends of the 48 people who died and 214 people who were injured in the fire at the Stardust nightclub, in Artane, Dublin on Valentine’s Day in 1981, march in protest before handing in more than 48,000 signed postcards to the Attorney General – calling for the 48 inquests to be reopened.

Previously: Not For Turning

Stardust Memory

Meanwhile…

Justice For the Stardust 48 (Facebook)

Pics: Mick Caul


The full unabridged email that may bring down the current government.

Michael Flahive, of the Department of Justice, sent this to Tanaiste and former Minister for Justice Frances Fitzgerald’s private secretary Christopher Quattrociocchi on May 15, 2015, which was subsequently sent to her.

Ms Fitzgerald has said she can’t recall receiving the email.

In it, Mr Flahive says he received a call from Richard Barrett, of the Attorney General’s office, and that, according to Mr Barrett, a row had taken place at the O’Higgins Commission of Investigation between the legal counsel for Sgt Maurice McCabe and the former Garda Commissioner Noirin O’Sullivan.

Mr Flahive claims Mr Barrett told him the row occurred because the counsel for Ms O’Sullivan wanted to introduce a complaint that the 2006 investigation into Ms D’s ‘dry humping’ allegation against Sgt McCabe wasn’t investigated properly.

Mr Flahive outlined that Michael McDowell, SC for Sgt McCabe, objected to this being raised and asked if Ms O’Sullivan had authorised the argument that this claim was relevant to Sgt McCabe’s motivation.

Mr Flahive explained that Mr Barrett said Ms O’Sullivan had authorised this approach.

On Tuesday night, Sgt McCabe told Taoiseach Leo Varadkar the alleged events outlined in this email never happened.

Readers should recall Ms Fitzgerald, in May 2015, received a lengthy report from GSOC in which it stated the 2006 investigation was carried out correctly.

That GSOC investigation followed a complaint made by Ms D, which was discussed at the Disclosures Tribunal when Irish Independent journalist Paul Williams gave evidence.

When Ms D gave a statement to GSOC, on July 3, 2014, Ms D told GSOC Mr Williams told her senior members of An Garda Siochana and Government were aware of her allegations.

When asked about this, Mr Williams said it was a “throwaway remark” that the then head of the Garda Press Office Supt Dave Taylor said to him and that he later relayed it to Ms D.

Related: ‘This Is About A Failure To Stand By Maurice McCabe’ 

Derek Mooney: What Happened

Previously: Absence Of Malice

In DPP Trouble

Disclosures, Discrepancies And Paul Williams

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Attorney General Máire Whelan

Last year, Clare Daly’s bill on fatal fetal abnormalities was vetoed by Fine Gael and Labour TDs, many of them pro choice, acting on unpublished advice from the Attorney General Maire Whelan,

On Thursday, another, blll sponsored by Mick Wallace, in similar terms will go before the Dáil.

Once again, the Government has stated that it should not be voted for, in view of the AG’s previous advices.

We asked Legal Coffee Drinker, what gives.

Broadsheet: “Legal Coffeee Drinker, what gives?”

Legal Coffee Drinker: “I’m not sure what you mean but what matters is whether or not these advices are correct. The courts’ view of the scope of the right to life of the unborn does not appear to be  the same as the Attorney General’s.
P (P) v Health Service Executive [2014], in which it was held that the withdrawal of life support from a woman, who was brain dead, and whose foetus had no viable prospect of survival outside the womb, was not in breach of the State’s obligation to vindicate the right to life of the foetus where there was no reasonable prospect that it would be born alive.
A legislative provision like the proposed Bill, which only provides for termination in circumstances where there is no possibility of the unborn being born alive, would not therefore be unconstitutional.”

Broadsheet: “So you feel that it is wrong to oppose the bill on the basis of the AG’s advice?”

Legal Coffee Drinker: “On the basis of this advice as communicated to the public, yes. All we have is a bald assertion by the AG that the Bill is unconstitutional, based on the wording of the Constitution. No copy of the AG’s advices have been published and it’s not clear whether or not these advices took into account the P case, which would appear to make it quite possible – if not highly likely – that the Bill is constitutional.
There’s also the separate question of whether or not over-reliance on the A-G’s opinion in this matters could potentially breach the separation of powers provisions in our Constitution.
The Constitution provides for a clear division of power between the Goverment, the Oireachtas and the Courts, and also provides that the Courts – and not the Government, of which the AG is part – are the arbiters of unconstitutionality. In view of this, the Constitution even provides, in Article 26, for a special mechanism whereby a Bill may be referred to the Supreme Court, prior to being signed, to have its constitutionality ascertained.”

Broadsheet: “So over-reliance on the A-G’s opinion as to unconstitutionality may itself be unconstitutional?”

Legal Coffee Drinker: “Precisely. If bills don’t go ahead because there is too much deference to the AG’s opinion, then the constitutionality of the bill never gets to be decided on by the Supreme Court. Treating the AG’s opinion as final and conclusive – in circumstances where there is High Court authority to the contrary – is itself a breach of the separation of powers.
At the very least – given that there is authority which appears to be in direct conflict with her advices – more detail about the AG’s advices should be published to TDs before they can reasonably be expected to rely on those advices.
And attempts to discipline party or government members, who vote for a Bill opposed by the Government solely on the basis of the AG’s advice as to its constitutionality – could also be challenged on the grounds that a TD. should never be punished for seeking to uphold the principle that the courts be the sole arbiters of the Constitution…”

Broadsheet: “Thanks Legal Coffee Drinker. It’s been a while. May readers have been asking for you. Welcome back.

Legal Coffee Drinker: *click*

Previously: Unequivocal But Wrong

Rollingnews

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Pat Leahy,headshots 5.08.05©tos

From top: Independents 4 Change TD Mick Wallace in the Dáil last night and Irish Times deputy political editor Pat Leahy

Further to last night’s debate on Independents 4 Change TD Mick Wallace’s bill to allow for terminations in Ireland in the case of fatal foetal abnormality – a bill which has been deemed unconstitutional by the Attorney General Máire Whelan.

Pat Leahy, deputy political editor of the Irish Times, spoke to Seán O’Rourke on RTÉ Radio One this morning.

During their discussion, Mr Leahy insisted that, having seen Ms Whelan’s advice, it is ‘utterly unconstitutional’.

He also suggested that if the Government doesn’t accept Ms Whelan’s advice, she may have to step down.

Readers may note that Mr Wallace has called for the advice to be published – to allow for a debate on the advice.

From the interview…

Pat Leahy:At present the Government is unable to reach a collective position on Mick Wallace’s bill which was debated in the Dáil yesterday evening but won’t be voted on until next Thursday. And normally what would happen is with a private members bill like this, the Government would oppose it or not oppose it. But normally would oppose it, put down a countermotion and Government TDs would be whipped into voting for the countermotion or the amendment but, at its meeting last Tuesday, the Government was unable to reach a decision. Now, constitutionally, legally, the Government must act with collective authority. That means that it must, all its members must agree to act and speak as one…”

Sean O’Rourke: “I’ve just happened to find that article 28 in Bunreacht na hÉireann, it says, one, well it says, ‘the Government shall be responsible to Dáil Éireann’ and then, ‘the Government shall meet and act as a collective authority and shall be collectively responsible for the departments of state, administered by members of the Government.’

Leahy: “Yeah. And at present in relation to this issue, the Government is unable to do that. And that’s despite having been advised by its chief law officer and legal advisor, the Attorney General, that the bill that Mick Wallace has put before the Dail is unconstitutional. And I’ve seen that advice, I wrote about it in the Sunday Business Post last year and again recently in the Irish Times, and that advice is utterly unequivocal, it’s not, ‘on the balance of probabilities, this is probably unconstitutional’. It’s completely unequivocal that, it couldn’t be stronger that the bill is unconstitutional. And despite that clear advice, the Government is unable to come to a collective position on that.”

O’Rourke: “Why?”

Leahy: “Because the Independent Alliance members want a free vote. Now it’s my understanding that the Independent Alliance members of the Cabinet are prepared to sign up, if you like, to a collective decision to oppose this bill. But they want to be allowed the right to abstain on it themselves. Now that sounds slightly constitutionally shaky to me but it may be a way out. And, ultimately, if you were to ask me, I suspect that that’s the way out that will be found. As of yesterday, I’m told, that the Taoiseach and Sarah Bardon writes about this in our paper [Irish Times] today, the Taoiseach was absolutely firm that that would be impossible. That having been advised by the Attorney General, the Government must follow his advice and ministers must act in accordance with that advice.”

Later – after Mr O’Rourke played clips of Fine Gael TD Kate O’Connell speaking during last night’s debate and Independent Alliance TD John Halligan speaking earlier today on RTÉ’s Morning Ireland

Leahy: John Halligan gave a very powerful speech last night in the Dáil. Not the first powerful speech he’s given on this subject and there was motions on this in the last Dáil as well and it’s peroration was that he didn’t care what the Attorney General’s advice does, sorry, didn’t care if it was unconstitutional. Anyone who was there last night or anyone who was watching last night, couldn’t have been in any doubt other than he’s certainly, if he’s not going to vote for this, he’s certainly not going to vote against it. I think that presents him with a problem.”

O’Rourke: “Here’s a question and I’m just wondering, I’m no constitutional lawyer but is John Halligan part of the Government in the sense of being part of the Cabinet, he’s not?”

Leahy: “No, he’s not. No, he’s not. He’s not. The Government in the constitution, we use it as a generic term to mean everybody in Government buildings and so forth.”

O’Rourke: “So could it not be said, look he’s not in the Cabinet, so he’s not, he doesn’t have the same constitutional responsibility, we’ll cut him a bit of slack. On the other hand, it’s very bad, is it not, for political discipline?

Leahy: “That deal could perhaps, maybe that’s what happens. But he’s got a slight problem with the programme for Government that he spoke about there and in the programme for Government it says that where the Government reaches a decision that all members and office holders specifically, and he is an office holder, are bound to support that decision. Now, so under the terms of that, under the terms of the programme for Government…”

O’Rourke: “That’s where his difficulty will lie…”

Leahy: “If the Government decides that to oppose this bill, and that depends on the independent ministers in Cabinet, resiling from their opposition to that collective decision being made, then he’s got…but there’s another problem here I think Sean, which is that if this is let slide and the Government does not reach a position on it, I think that’s a very serious situation for the Attorney General, whose advice to the Government is unequivocal. Now if the Government is unable to follow that advice, I think it probably puts her in a more or less untenable position.”

O’Rourke: “You think she might resign if the Government doesn’t stick by and accept the Taoiseach’s insistence, they have to vote against this…”

Leahy:If the Government doesn’t take the Attorney General’s advice on an issue such as this then it would be hard to know what the Attorney General is for…”

Listen back in full here

Previously: ‘You Allow An Unconstitutional Bill On Property Rights But Not Women’s Rights?’

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Attorney General Máire Whelan and Taoiseach Enda Kenny

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?

Time to make Attorney General answerable for actions (Fintan O’Toole, Irish Times)

More serious by far is the failure of the Government’s legal adviser to spot a heretofore untouched issue. Surely that is the meat and drink of advising government of its legal duties. Unfortunately for the office holder, Máire Whelan, this is not the first controversy into which she has walked. Her role in the run-up to the departure of then Garda commissioner Martin Callinan last year came in for serious criticism on publication of the Fennelly commission report.

The commission did finally get around last week to concluding that the matters of privilege and confidentiality would impede a proper investigation. Why, it might well be asked, did it take so long? Surely it should have been obvious before now.

IBRC flaw should have been blindingly obvious to commission of investigation (Michael Clifford, irish Examiner)

In a clear assessment in a 77- page determination seen by The Irish Times, Mr Justice Cregan says that the 2004 Act does not give him any express power to rule that the public interest can overrule the right to confidentiality.

He also argues that as a “creature of statute” the Commission has inherent power to engage in such a “balancing exercise of whether the private duty of confidentiality should be outweighed by a public interest in disclosure,” adding that in his view these were matters “ for the courts” to decide.

200,000 pages of IBRC evidence that cannot be used (Cliff Taylor, irish Times)

(RollingNews.ie)

kenny[Enda Kenny in the Dail this morning]

“For your information and for the information of the country, I attended at an occasion in Dublin here on Sunday. In the morning I called the Attorney General [Máire Whelan] who said that she would be in the Department in any event to prepare for Tuesday’s [Cabinet] meeting, as she normally does. And she did indicate to me that there was another matter that we should…that I should be made aware of and that the Attorney General was not prepared to talk to me about the matter on the telephone.”

Taoiseach Enda Kenny addressing Fianna Fáil leader Mícheal Martin minutes ago.

Earlier: The AG And The Whistleblower

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[Attorney general Maire Whelan]

In January 2013 Garda whistleblower Sgt Maurice McCabe wrote to the Attorney General Maire Whelan to relay his concerns about the penalty points issue.

 “I am a public servant. I need to forward an email to your office but I need to be sure that it will remain private and confidential before I can send it.”

He was assured that his correspondence would be “handled in strict confidence” and he forwarded his allegations.

The Attorney-General’s office did not inform Sgt McCabe that they had earlier provided legal advice to the Gardai over the penalty points issue.

They then forwarded Sgt McCabe’s letter  – despite his protests – to then Garda Commissioner Martin Callinan and justice minister Alan Shatter because the claims were “of such a serious nature”.

Good times

A-G’s office forwarded letter sent in confidence (Colum Kenny, Sunday Independent, May 13, 2013)

(Mark Stedman/Photocall ireland)