Tag Archives: Jim O’Callaghan

This morning.

Fianna Fail Generel Election HQ.

At a Press Briefing on Crime and Drugs were, top pic from left: Fianna Fail Spokesperson on Drugs John Curran, Fianna Fáil Justice Spokesperson Jim O’Callaghan, and Dublin City Councillor Mary Fitzpatrick.

Meanwhile

Leah Farrell/RollingNews

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This evening.

Leinster House, Dublin 2.

Further to her meeting with Garda Commissioner Noirin O’Sullivan yesterday.

Justice Minister Frances Fitzgerald made a statement about the latest Garda controversies including the near one million breathalyser tests that gardaí claimed they carried out, but didn’t, and the 14,700 wrongful convictions for motoring offences.

During her statement, Ms Fitzgerald said “the scale and detail of these issues became apparent last week at the Garda press conference but I want to say I’m determined that all of the facts will emerge”.

She also said:

An anonymous complaint was made to the Road Safety Authority in April 2014, outlining a number of issues which included the operation of mandatory alcohol testing, MAT, checkpoints. This complaint was referred to An Garda Síochána by the then Minister for Transport, Tourism and Sport.”

“An Garda Síochána indicated in a detailed letter to my Department in May 2014 that it had looked into the claims regarding MAT checkpoints and was satisfied that correct procedures were in place to account for MAT checkpoints that ultimately did go ahead. Every MAT checkpoint, as we know, must be authorised by an inspector.”

In June of last year my Department was made aware that some discrepancies had been identified in respect of MAT and that An Garda Síochána was commencing a national audit. An Garda Síochána indicated in June 2016 that no issues stemmed from this audit with regard to the performance of MAT checkpoints or prosecutions arising from same. It also set out the new procedures it had already introduced to facilitate the accurate recording of breath tests and outlined that an IT solution had been developed and would be implemented towards the end of 2016.

“Following this preliminary notification to my Department last year, updates were sought from An Garda Síochána by officials in my Department on a regular basis as to the progress of the audit that was then taking place. An Garda Síochána indicated in February 2017 that it was anticipated that the national audit would be finalised in the second quarter of 2017. Although that audit has not yet been finalised, An Garda Síochána announced figures at its press conference relating to the discrepancy between the number of test conducted at MAT checkpoints as per its own records compared with the records held by the Medical Bureau of Road Safety.”

No indication was given as to the scale of this issue at the time of the June 2016 letter and indeed, it is clear from what the Commissioner told me yesterday and from her public statements, that it was not known at that time to Garda management either. It was in order to assess the scale of the problem that the national audit of MAT was launched. I did not become aware of the huge discrepancy in the breath test figures until it was revealed at last week’s Garda press conference.

Regarding the issue of fixed charge notices, my Department was informed in June 2016 of an error relating to summonses having been incorrectly issued to persons who should have received a fixed charge notice for the offence of not having a valid national car test, NCT, certificate, which became a fixed charge offence in December 2014. An Garda Síochána indicated that following on from those initial findings, further inquiries were being carried out relating to all summonses issued for other fixed charge offences.”

“Colleagues should note that a press statement was issued that day by An Garda Síochána about this issue. In that statement, An Garda Síochána confirmed that it had commenced a review of prosecutions relating to all fixed charge offences. The letter set out the remedial actions already taken by An Garda Síochána at that stage, which included withdrawing prosecutions in any affected cases and putting in place a short-term IT solution within four weeks while a longer-term IT solution was being developed.”

“Following the preliminary notifications of these problems to my Department last year, updates were sought on a regular basis as to the progress of the review taking place into the fixed charge processing system issues covering the period referred to in the letter from An Garda Síochána, from 1 January 2014 to 27 May 2016. The results of this review were communicated to my Department in a letter received on 14 March 2017.”

The letter indicated that a total of 1,781 cases had been identified where persons had been convicted in situations where they had been incorrectly summonsed to court, either without first having been issued a fixed charge notice or having been issued and paid a fixed charge notice. The letter also set out – this is important – that consultation remained ongoing with the Director of Public Prosecutions, DPP, with whose office there had been ongoing consultation and the Courts Service in regard to commencing the process of setting aside the convictions in the courts. That engagement with the DPP is ongoing.”

An Garda Síochána also advised in that letter, received recently on 14 March, that the DPP had indicated that the review should be extended to include cases before 2014 and that this process was now under way. That, of course, is why the audit was meant to be ongoing until June of this year. That was to be when I was to expect the final report. That is when I had been advised I would get the final report.”

I became aware of the figure of some 14,700 cases where a conviction took place after an incorrect procedure when An Garda Síochána made that information public last week. It is matter of great regret to me, as I know it is to everyone in this House, that anyone should be summoned to court inadvertently, with all of the consequences that follow for individuals. It is absolutely critical now that these mistakes be resolved and that the necessary remedial actions be taken.”

“As for the fixed charge penalty notice, FCPN, at my meeting with the Commissioner yesterday she assured me that arrangements are being put in place in regard to the persons affected. All of these cases will be appealed by An Garda Síochána to ensure the courts set aside these convictions, as they have to. All fines will, of course, be reimbursed and penalties will be removed, and all of those affected will be contacted directly by An Garda Síochána. Individual letters will be sent to all the people concerned and they will begin to be issued on 3 April.”

“The Commissioner also outlined to me the IT and operational solutions that have been put in place to ensure that these practices would cease. In fact, at the ministerial meeting yesterday, which was scheduled ahead of all of this emerging, both the Minister for Transport, Tourism and Sport, Deputy Ross, and I were assured by both Professor Cusack and all the other people present that the new procedures were in place, that we could be confident about the new procedures and that there are changes being made to the machines, using GPS and further information, so the kind of mistake associated with the technical attributes of the devices can never happen again.”

In the case of mandatory alcohol tests, An Garda Síochána initially put in place new paper-based recording and verification processes and, in November 2016, a new specific data-recording IT upgrade was installed on the Garda PULSE system.”

“The net effect of the new IT upgrade was that personnel now have to record the serial number of the device used for each breath test plus the meter reading before and after the checkpoint was concluded. This, apparently, was not being done before. It is clearly only one of the explanations for this situation. Data from the device are now used to verify the total number of breath tests conducted at each checkpoint.”

“The focus now, however, has to be on what is being done to get to the full truth of what transpired and the accountability that must be brought to bear. Clearly, there is a need for an investigation to hold responsible those people, at all levels of the Garda organisation, who allowed such large discrepancies in the breath-testing figures to arise.”

Meanwhile…

After making her statement, Ms Fitzgerald fielded questions from different politicians, including Fianna Fáil’s justice spokesman Jim O’Callaghan.

Jim O’Callaghan: “The Minister said in her statement that she became aware of the scale of the number of convictions only this month, when she was notified of it. When did she become aware in general that there were issues in respect of wrongful convictions arising from this matter?”

Frances Fitzgerald: “The answer to that is the letter that I received in June 2016 from, the department received it actually, from Michael Twomey, outlining that they were concerned about some issues. There was no figure mentioned so I was not aware of the 14,700 and I don’t believe that the gardai, at that point, were aware of it because that was an earlier stage. The audit wasn’t completed and they had put some procedures in place to make sure though, that they would not be further, there would not be further problems. But they hadn’t done a national audit at that point. So they weren’t sure about the figures. And it was only when they had the press conference last week that they did a national audit, that involved well over 100,000 and that then got to a point where it was the figure of 14,700 was arrived at. So they hadn’t done the full national audit at that point. Is my understanding. Is that right? [to assistant on her right].”

O’Callaghan:I’m taking from your answer that you were aware from June 2016 that there was an issue in respect of wrongful convictions that had been obtained  against persons in our district courts?

Fitzgerald: “Thank you [to assistant]. Yes, at that point, in the letter, they did of course, because they also put some solutions in place in relation to what had happened to different individuals, it was clear that they were concerned that there would be a number but they had no idea, from my understanding that there were 14,700 at that point. But they were concerned that some people would have been taken to court, summoned to court who should not have been summoned to court. And that some solutions had been put in place. They were obviously linking with the DPP and all of the relevant bodies. But that a full audit needed to be done and the figure of 14,700 emerged at the press conference just last week.”

O’Callaghan:Tanaiste, if you were aware in June 2016 that individuals had been wrongly convicted before our courts, you were Minister for Justice at that time. What did you do about it then?

Fitzgerald: “At that point what was being done was that the full scale of this issue was being examined to see precisely what the implications of it were. I was aware that action had been taken so that no further such mistakes could be made and I was awaiting the results of the full audit and my department was in contact with An Garda Siochana on a regular basis to ensure we would get the full audit.”

Later

O’Callaghan: “I just want to ask you another question and, before I ask you the other question, I want to just preface it by stating that, as Minister for Justice, you’ve been aware for nine months that there were wrongful convictions that took place before our district court, and, in my submission, you did nothing about it.”

“I want to now ask you about the issues in terms of breath test figures. We know that the Medical Bureau of Road  Safety raised this discrepancy with An Garda Siochana in July 2014. We know that the gardai conducted a review in the southern region in 2015. We know that they extended it out to the whole country in 2016 and we know that in November 2016, they introduced a new IT system in order to overcome the problem. I want to ask you two questions. First of all, when did you become aware of these problems with the breath test figures and, secondly, are you satisfied with the fact that An Garda Siochana, to this date, have not been able to explain to the Irish people why it is that 937,000 breath tests were falsely recorded on the PULSE system.”

Fitzgerald: “I have put it on the public record that I received a letter in June 2016 outlining that some issues had arisen and actually they were examining what they needed to do and that they were doing a full audit, that it would be completed in the second quarter of this year. That was the information that I had. And my department continued to be in contact with the gardai…”

Meanwhile….

Transcript of statement via Oireachtas.ie

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Fianna Fáil justice spokesman Jim O’Callaghan and Fine Gael Minister for Justice Frances Fitzgerald in the Dáil last night

Last night.

In the Dáil.

There was a three-hour session entitled ‘Clarification of Statements made by the Taoiseach and Ministers’ in the wake of reports about the false sex abuse allegation against Sgt Maurice McCabe.

So, what was clarified?

Well.

Fianna Fáil’s justice spokesman Jim O’Callaghan and the Minister for Justice Frances Fitzgerald had this exchange at the very beginning.

Jim O’Callaghan: “Last Wednesday evening I met the Tánaiste in a quiet area of this House to tell her that I wanted the terms of reference of the proposed commission of investigation extended.”

I told her that I had become aware, from speaking to my party leader Deputy Micheál Martin, who had spoken to Sergeant McCabe, that Sergeant McCabe had informed him that there would be a “Prime Time” programme broadcast on Thursday evening which would contain a story about a Tusla file that contained a false allegation of sexual abuse against Sergeant McCabe.”

“I told the Tánaiste that paragraph B of the terms of reference needed to be extended to cover that. The Tánaiste agrees that I asked her to extend the terms of reference. She also agrees that I asked her to extend the terms of reference because of a forthcoming “Prime Time” programme.”

“However, she denies that I told her about any Tusla file contained in that programme. If she is correct, why did she agree to consider my amendments, as she did, without asking me what the “Prime Time” programme was about?”

Frances Fitzgerald: “I got a phone call from Deputy O’Callaghan at about 6.30pm last Wednesday. He asked me if I would meet him and I left the parliamentary party meeting and went to meet him. We had a discussion for about 12 minutes. Deputy O’Callaghan informed me that there was a “Prime Time” programme the next evening. He used the word “documentary” in relation to Maurice McCabe and the allegations.”

He said the programme would cover the smear campaign allegations that had been made against Sergeant McCabe and he said to me that I needed to look at the terms of reference because if they did not cover what emerged on the “Prime Time” programme that would not be a good place to be in and it would leave “egg on our face” in terms of the Dáil and the work we are doing.”

“He said to me that he wanted to make sure that the allegation of a smear campaign against Sergeant McCabe was covered and whether it had been carried out by the Garda Commissioner and the previous Garda Commissioner. I said to him that they were already covered in the terms of reference and the vast majority of our conversation was about the detail of the amendments and how they needed to be changed because the Deputy was concerned that the reference in relation to Superintendent Taylor was too restrictive and would mean that there was not a proper examination of the allegations.”

“For that reason, I agreed to consider how we would extend the terms of reference to make it absolutely clear that this could be covered. He also asked that Ministers would be included and I said there was no reason not to include them. I went away to do some work on the changes to the terms of reference.”

At no time did Deputy O’Callaghan mention Tusla, and if he had, or if he had said to me he wanted a particular reference in that regard I would have included it. It would have been to my advantage to include it if I had been told about it, and if he had made it clear to me that Tusla should be included because “Prime Time” was covering it, I would have included it.”

“It would have been totally to my advantage to come back to the Dáil and insert Tusla. Deputy O’Callaghan made no mention the next day about Tusla when he made his speech.”

O’Callaghan:I disagree with the Tánaiste. I referred to Tusla in our conversation. What the Tánaiste has said in her statement is that she was prepared to seek the amendment of important terms of reference based upon a forthcoming television programme I was telling her about.”

At no stage is she saying that I indicated to her what the programme was about and at no stage did she ask. Is it credible that a Minister for Justice would agree to amend terms of reference of an important commission of investigation based on upon a television programme and not ask what the programme was about?

Fitzgerald: “Deputy O’Callaghan made an extremely strong case that he felt the way the terms of reference were formulated as the judge presented them – because they were the judge’s words – regarding the allegation of a smear campaign in Superintendent Taylor’s protected disclosure was too narrow.”

“The Deputy spent most of the time talking to me about how it circumscribed the investigation too much and ought to be broader. He made his case entirely on the fact that the terms of reference were too narrow, not on the “Prime Time” programme. He made his case on the basis that the way the judge had written them made them too circumscribed. I accepted in full the Deputy’s bona fides on it.”

“He wanted the terms of reference changed so that there was no doubt whatsoever that all of those allegations could be investigated and I responded on that basis. What was in or not in the programme was not the central point. It was that the Deputy wanted clarity in respect of the allegations and that they would be fully investigated and would not be circumscribed by reference to Superintendent Taylor. That was the main point of the discussion.”

O’Callaghan: “The Tánaiste is correct in stating that most of our discussion was about paragraph (b) and I emphasised to her that it was too limited in terms of how it referred to Superintendent Taylor’s communications with the media and that it needed to be broader. However, I commenced the conversation with her by telling about the forthcoming programme which was in respect of a Tusla file. My final question for her is this. After her discussion with me, who did she contact and what did she say to them?

Fitzgerald:The first point I would make to Deputy O’Callaghan is that if he was so concerned about Tusla being included in the terms of reference, why did he not raise it himself? Why did he not raise it in his speech? I came in here last Thursday and asked for statements so I could take on board the point of view of everybody here. I was completely flexible in terms of what I wanted to include in terms of investigating it and getting at the truth.”

After Deputy O’Callaghan spoke to me, I contacted the Attorney General, asked her about changing the terms of reference, told her what Deputy O’Callaghan’s formulation was and asked her whether it was legally sound and whether it was the way we should proceed.”

I had a further discussion with Deputy O’Callaghan about how it should be changed. Deputy O’Callaghan reiterated the points made here the next day but he never mentioned Tusla. Other people mentioned different things they wanted included. Deputy O’Callaghan did not mention Tusla. I had a conversation with him primarily about making sure that the terms of reference included Government Ministers, that they included great clarity and that the commission would investigate the allegations fully.”

O’Callaghan:Were any of the Tánaiste’s officials or Government officials aware of the Tusla allegation prior to the programme being broadcast on Thursday evening?”

Fitzgerald:I was not aware of what was in the Tusla file prior to the programme being broadcast and neither were my officials. Nobody had brought it to my attention.”

Right so.

Transcript via Oireachtas.ie

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From top: Garda Siochana Ombudsman Commission office; Garda Commissioner Nóirín O’Sullivan; and Fianna Fáil justice spokesman Jim O’Callaghan

This morning, the Irish Examiner reported that GSOC cannot obtain documents in relation to the O’Higgins Commission which investigated complaints made by Sgt Maurice McCabe.

In addition, it also reported that Garda Commissioner Nóirín O’Sullivan cited legal restrictions under the Commission of Investigations Act 2004 as reasons for why she could not give GSOC certain documents in relation to a public interest investigation regarding Sgt McCabe’s claims.

This is despite the fact that it was Commissioner O’Sullivan who originally called on GSOC to carry out such an investigation.

Further to this…

After recently telling RTÉ’s Six One News that he had “confidence” in Ms O’Sullivan. Fianna Fáil’s justice spokesman Jim O’Callaghan spoke to Áine Lawlor on RTÉ’s News at One about his proposal to get around the legal issues.

Áine Lawlor: “Jim O’Callaghan is proposing a change in the Commission of Investigation’s Act that would overcome this hurdle and he joins us now from our Dáil studio. Good afternoon, Jim O’Callaghan.”

Jim O’Callaghan: “Good afternoon.”

Lawlor: “The specific problem. What is it? That nobody basically can have access to the private papers, the private recordings, or testimonies given to a private commission of inquiry – even though there’s public interest investigation going on by GSOC. Is that it?”

O”Callaghan: “Yes that is the problem. In June of this year, the Tanaiste referred to GSOC, the issue about the two conflicting accounts of the meeting in Mullingar, in 2008. She made that reference under Section 102 of the Garda Siochana Act. We now learn that GSOC wrote to An Garda Siochana, seeking access to all documents, including transcripts. Now the Garda aren’t allowed to provide those transcripts because of Section 11 of the Commission of Investigation Act 2004. So I would have thought that if the story in the Examiner today is correct that there is a relatively simple method of getting around this problem which would be by amending Section 11, to provide for one other provision whereby the information could be provided. And that would be if there’s an ongoing investigation being conducted by GSOC under part 4 of the Garda Siochana Act.”

Lawlor: “And, indeed, you’ve sent us a copy of your proposed Commission of Investigation amendment bill. It’s nice and short. We understand this matter has been referred to the Attorney General. Do we know if she is looking at a simple legislative change, like yours, would unblock this roadblock?

O’Callaghan: “Well, we had a similar roadblock, in respect of the Judge Cregan inquiry [into IBRC transactions and write-offs] when Judge Cregan said that the underlying legislation didn’t allow him access to confidential information. And there was a small amending piece of legislation introduced in order to facilitate him. So the alternative here is that the GSOC inquiry doesn’t go any further. I don’t think that’s an option. Consequently, I think we should give consideration to amending the legislation. Obviously, it’s all dependent on the story in the Examiner being correct. If the story is correct, well then I think the only solution to it would be to provide for some amending legislation.”

Lawlor: “And, should it be true, would it not have dawned on anyone back in June, particularly given that this kind of roadblock around the privacy of commission of inquiries that that had cropped before, that might be an issue in this case.”

O’Callaghan: “Well, I have to say, I was slightly surprised when I heard that GSOC hadn’t commenced there investigation into this. They were asked to investigate two conflicting accounts of a meeting that took place in Mullingar and they say they need the transcripts, they’re the investigator. But I would have thought they should be able to commence the investigation even if they didn’t have access to the transcripts. So, it’s an investigation that could, in my opinion, be conducted without the transcripts. However, they’re the investigator. They said they need them and they’re not going to commence unless they get them and I think we need to respond to what they state.”

Listen back in full here

Previously: Untold Damage

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From top: Senior Counsel for Denis O’Brien, Jim O’Callaghan (right), at Dublin Castle for the  Moriarty Tribunal in 2010 and Denis O’Brien

Mark Tighe, in The Sunday Times at the weekend, reported that Persona – which is suing the State and Denis O’Brien over the awarding of the mobile phone licence to the businessman in 1996 – has been allowed a “leapfrog appeal” to the Supreme Court.

It follows the High Court ruling in April that Persona – run by Tony Boyle and Michael McGinley – could not use funds from a third party, Harbour Litigation, to fund its case.

Mr Tighe reported:

The High Court ruled that Harbour had no direct interest in the case so its funding of Persona would breach the laws of champerty, a criminal offence.

Both the state and O’Brien opposed Persona’s attempt to appeal directly to the Supreme Court.

In O’Brien’s legal submission, signed by two senior counsel including Jim O’Callaghan, Fianna Fail’s spokesman on justice, it was denied that Boyle and McGinley needed financial assistance to run the case.

… Since the Court of Appeal was established in 2014 to handle a backlog of appeals from the High Court, the Supreme Court has restricted direct appeals to only those issues of “public importance” and cases with “exceptional circumstances”.

The state had argued Persona’s appeal did not concern a matter of general public importance.

Both O’Brien and the state also argued there was no urgency to the case, which involves allegations that Michael Lowry, as communications minister, improperly awarded the licence to O’Brien’s consortium 20 years ago.

In its determination the Supreme Court, comprising the chief justice Susan Denham, William McKechnie and Elizabeth Dunne, said in light of constitutional principles of access to the court and access to justice, they considered Persona raised issues of general public importance.

“This application is one where there is in essence a single legal issue of general public importance which transcends the interests of the parties before the court in these proceedings, namely the application of the doctrines of maintenance and champerty,” it said.

“As the application may involve the issue of access to justice, and access to the courts, it is a matter of significant importance. The court is satisfied it is a case where leave to appeal may be granted from the Court of Appeal.”

… The Persona appeal will now go into a case management process before the formal Supreme Court hearing.

O’Brien case leaps to Supreme Court (The Sunday Times)

Pics: Laura Hutton/Sasko Lazarov (Rollingnews)

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Journalist William Campbell (above) interviews Jim O’Callaghan (top) in the latest episode of William’s enjoyable, spin-free Here’s How current affairs podcast.

Mr O Callaghan, a barrister and new Fianna Fáil TD for Dublin Bay South was at the heart of the negotiations between Fine Gael and Fianna Fáil that led to the minority government.

From the podcast:

William: “Why didn’t you go into coalition with Fine Gael?”

Jim: “Because we gave a commitment that we wouldn’t go into government with Fine Gael.”

William: “That’s a circular argument, why did you give that commitment?”

Jim: “Because we didn’t want to go into government with Fine Gael.”

FIGHT!

Listen here:

Rollingnews

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 justis.gov, 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.”

O’Rourke:
“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?”

O’Callaghan:
“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?”

O’Callaghan:
“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.”

O’Callaghan:
“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

So…

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)