When launching Renua Ireland, Lucinda Creighton stated that her new party wanted a new concept of open government. She said that one of these new concepts was that the advice given by the Attorney General to Cabinet should be made “publicly available”. This is undeniably a new concept, but it is one that would put the State in a bizarre and hopeless position where it found itself as a defendant in court proceedings.
The Constitution provides that the Attorney General shall be the advisor of the Government in matters of law and legal opinion. One of the main functions of the Attorney General is to advise and represent the government in proceedings taken for or against the State. The State is sued in thousands of cases each year by personal and corporate litigants. It is the function of the Attorney General to advise the government on the strength of these claims and the stance that should be adopted by the State in each piece of litigation.
For instance, we know that large multinational tobacco companies have threatened to sue the State because of the recent laws introduced in respect of plain cigarette packaging. It will be an obligation of the Attorney General to advise the government on that threatened litigation. She must provide the government with her legal assessment as to the strength and weaknesses of the claims threatened by the tobacco companies, and the robustness of the new packaging laws to the tobacco companies’ challenge.
If all advice given by the Attorney General to Cabinet is to “be made publicly available” then the people who will benefit the most will be litigants who have sued the State. For instance, under Renua’s proposals the tobacco companies would be provided with the confidential advice given by the Attorney to the government in respect of their prospective litigation. Those tobacco companies would then be in the highly advantageous position of knowing what the State regarded as the weak or strong points of their claims. Furthermore, those companies would be able to seek to undermine in court submissions made by the State by referring to the legal advice of the Attorney General which may have assessed a particular point of challenge as being particularly strong.
It is a fundamental rule of litigation that parties before a court are entitled to keep their legal advice confidential and privileged unless they waive that privilege by announcing it to third parties. Consequently, under Renua’s proposals every litigant before the Irish courts, with the exception of the State, would be entitled to the benefit of confidential legal advice. The State would therefore occupy the unique position, nationally and internationally, of having its legal advice open for general appraisal. Such a policy is internationally unprecedented.
In certain instances, the State also issues proceedings against other countries before international courts. For instance, in 2002 Ireland brought proceedings against the UK in two sets of proceedings relating to Sellafield, one under the UN Convention on the Law of the Sea and the other under the Convention on the Protection of the Marine Environment in the North East Atlantic. Both cases were heard before international courts in The Hague.
The proceedings were defended vigorously by the UK government which, like Ireland, had the benefit of confidential legal advice from its Attorney General. Should Ireland ever in the future be involved in international proceedings against foreign countries it would, if Renua’s policy is carried through, find itself before an international court having already provided its opponent with its own confidential legal advice on the substance of the claim. This is akin to the Irish rugby team handing the opposition before every match the details of its line-out calls and back moves.
Outside 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.
The ostensible reason for this Renua policy is that it will result in more open government. The reality is that it is a hare-brained idea that fails to appreciate the practical consequence and financial cost of such a proposal on the State. Most litigation issued against the State seeks an award of financial damages. The effect of the Renua proposal would be that it would become virtually impossible for the State to defend itself competently against any claim. It would result in large businesses and foreign States having a huge advantage over Ireland if they ever entered into dispute with this country.
Jim O’Callaghan is a Dublin City Councillor and Legal Adviser to the Fianna Fáil front bench. (article originally published in the Irish Times)