It is not all that rare an occurrence for an attorney general to make public comment or contribute to public debate. Perhaps the previous incumbent Máire Whelan was a bit of an outlier in that respect, saying very little during her six years as the government’s law officer.
But if you scroll back, for example, to Michael McDowell’s time as attorney general, he was much more prominent publicly, if not exactly a fixture on the weekend chat-show circuit.
Being the government’s legal adviser did not stop him from railing against the federalist programme in the EU or becoming president of a political party, the Progressive Democrats.
Even a big personality such as McDowell did not quite rise to such colourful language as Séamus Woulfe’s description of Minister for Transport Shane Ross’s big idea – the Judicial Appointments Bill – as “a dog’s dinner”.
Woulfe’s overarching argument was that the Bill, as it currently stands, is a contradiction, is inconsistent and is possibly unconstitutional.
The dog’s dinner comments certainly raised a lot of hackles, not least from Ross, and reportedly, from Taoiseach Leo Varadkar, who was unhappy that a Bill still under consideration in the Oireachtas should be so sharply criticised by the Attorney General.
As the Government confirmed yesterday, it will be the self-same Attorney General who will provide the legal and constitutional advice as the Bill nears completion. Government sources said on Monday there was no question about Woulfe’s position, or of him doing the attorney general version of “recusing” himself from deliberation.
But despite Ross’s insistence that the Bill will be processed by the summer, the Attorney General’s comments were not plucked from the air. Minister for Justice Charlie Flanagan put it a little more diplomatically on Monday when he said there were “too many cooks”.
He also seemed to point to the huge raft of amendments tabled by the Opposition during committee stage (where the Bill is scrutinised on a line-by-line basis). There were 191 amendments, a number of which were incorporated. But while politically convenient, the main chef responsible for the broth has been Ross who has led a one-person campaign to remove what he calls “vested interests” from judicial appointments.
But what is proposed is problematic in that only three of the 13 members of the new appointments commission will be judges (the Chief Justice, the President of the Court of Appeal and the President of the High Court). There is no place for the presidents of the Circuit Court or District Court. Moreover, the chair of the commission will be a lay person. And as things stand after the amendments, there is no place either for the Attorney General on the commission, which is another major omission.
It will also involve the setting up of an expensive directorate, with the added layer of bureaucratic responsibility that it will be responsible to the Public Accounts Committee, and the chair to other Oireachtas committees. In addition, the commission will split into sub-committees for different appointments, offering three names for each vacancy.
Besides the convoluted set-up, further complicated by amendments, how can a majority lay-person commission have the expertise to decide if a person will have the requisite intellect, court experience and expertise to write nuanced and far-reaching judgements on, say, complicated constitutional issues?
The Bill has reached report state, which is its penultimate stage in the legislative process. But with so much work (and repair work) to do, the insistence of Ross that it will be enacted by the end of April is now beginning to look like wishful thinking.
