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The Role of the Attorney General
From Office of the Attorney General
Published on
Last updated on
From Office of the Attorney General
Published on
Last updated on
The role of the Attorney General is set out in the text of the Constitution itself. Article 30.1 of the Constitution provides:
“There shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform such powers, functions and duties as are conferred or imposed on him by this Constitution or by law.”
In simple terms, the Attorney General is the government’s lawyer. The Attorney General provides the Government, its Ministers and their Departments with legal advice on policy, legislation and litigation, supervises the drafting of Government legislation and is responsible for managing litigation brought by or on behalf of the State and the Government.
The Attorney General is assisted in the performance of his or her functions by Advisory Counsel and by the Office of the Parliamentary Counsel to the Government. Advisory Counsel and Parliamentary Counsel are based in the Office of the Attorney General’s premises in Government Buildings on Merrion Street. The Attorney General also oversees the Chief State Solicitor’s Office.
Article 30.2 of the Constitution goes on to describe how the Attorney General is to “appointed by the President on the nomination of the Taoiseach”.
The Attorney General remains in office at the pleasure of the Taoiseach of the day. Article 30.5.4° provides that the Attorney General “shall retire from office upon the resignation of the Taoiseach, but may continue to carry on his duties until the successor to the Taoiseach shall have been appointed.”
While the Attorney General must work closely with Ministers of the Government and Departments of State, the Attorney General holds an office that is distinct and independent from the Government. Article 30.4 of the Constitution provides that the Attorney General “shall not be a member of the Government”.
Despite this independence, the Attorney General has in practical terms a very close relationship with the Government. This is illustrated well by the fact that the holder of this office is one of just two people who are not Ministers who attend meetings of the Government, or Cabinet meetings.
The Attorney General and the Secretary General to the Government, the highest ranking civil servant in the State, are the only two people who do not hold ministerial office who are allowed to listen to and participate in these confidential discussions.
One of the primary responsibilities of the Attorney General is the conduct of litigation on behalf of the State and the provision of legal advice in respect of that litigation. Where an action is taken against the State or a Minister of the Government, the Attorney General is normally also named as a defendant.
The Attorney General has a particularly important role in defending the constitutionality of legislation and government policy. Such proceedings will often name the State and the Attorney General as defendants, in which case the Attorney General will have responsibility for persuading the court that the legislation or policy is not repugnant to the Constitution. The performance of this function is vital to ensure that the Government can effectively pursue its policies and implement the legislation enacted by the Oireachtas within the limits of the Constitution.
Further, even in cases where the State is not named as a defendant, any proceedings which challenge the constitutionality of legislation, or in which an important point of constitutional interpretation is raised, must include the Attorney General as a notice party. This ensures that the courts do not make any ruling on any significant constitutional argument without hearing submissions, where necessary, from the Attorney General . The courts will therefore be able to make a decision after considering the position of the State. Similar requirements apply in proceedings seeking a declaration that legislation is incompatible with the European Convention on Human Rights.
The Attorney General must also defend the constitutionality of legislation under the procedure set out in Article 26 of the Constitution. Article 26 gives the President the power to refer to the Supreme Court the question of whether any bill passed by the Houses of the Oireachtas, or any provisions of such a bill are repugnant to the Constitution. If the Supreme Court determines that a bill, or the specific provisions referred to it, are consistent with the Constitution, an issue which it must decide in a single judgment, then that bill or those provisions are immune from subsequent scrutiny by the courts as to their constitutionality. The President must then sign the bill into law. Article 26.2.1° expressly provides that the Supreme Court shall make its decision within sixty days of the reference, “having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court”.
The Attorney General may also apply to the courts for orders to secure compliance with the Constitution. Similarly, the Attorney General may also apply to court for orders to enforce the provisions of a statute, but this power is exercised only in exceptional cases.
The Attorney General also has a role in asserting and defending public rights. The Attorney General may therefore apply to court for orders enforcing public rights, such as a public right of way or other right that is held by the public at large. The Attorney General is also entitled to conduct legal proceedings in respect of State lands under section 16(5) of the State Property Act 1954.
The Attorney General can allow a private party to sue in his or her name through a relator action. In such a case, the Attorney General is the nominal plaintiff but the action is generally brought at the instance of a private party seeking to enforce a public right. In a relator action, it is the private party which will ultimately be required to indemnify the Attorney General for any liability for costs.
The Attorney General also has important functions in relation to EU law, including defending claims that Irish legislation or Government policy is incompatible with EU law. As a Member State of the EU, Ireland also is a privileged applicant under Article 263 of the Treaty on the Functioning of the European Union (TFEU) and as such it has standing to challenge any legal act of an EU institution including regulations, directives and Commission decisions. The State can also intervene in any proceedings before the Court of Justice of the European Union and it exercises those rights where the issues raised might affect the State’s interests.
The Attorney General plays an important role in identifying cases where it might be appropriate to intervene, providing legal advice on the content of the intervention and instructing counsel where necessary to make submissions on the State’s behalf.
The Attorney General is responsible for nominating external counsel from private practice to be briefed to appear on behalf of the State in domestic and international courts. External counsel may also be briefed to provide expert advice to assist the Attorney General and the Advisory Counsel in providing legal advice to officials in Departments of State.
The Attorney General is not only involved in defending legislation from judicial scrutiny after its enactment, but is also engaged at a much earlier stage in the legislative process. The Attorney General is responsible for overseeing the drafting of legislation for the Government and for providing legal advice to the Government on legislative proposals that it seeks to advance.
This work is done by the Office of the Parliamentary Counsel to the Government, which comprises more than 40 parliamentary counsel and is a constituent part of the Office of the Attorney General, based in Merrion Street.
Article 30.3 of the Constitution vests the power to prosecute offences on indictment in the Attorney General:
“All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.”
Offences which can be tried in a court of summary jurisdiction (such as the District Court) are often prosecuted by other bodies. For example, section 9 of the Criminal Justice (Administration) Act 1924 (which survived the coming into force of the 1937 Constitution and survives to this day) permitted Ministers to prosecute certain summary offences, while leaving all prosecutions on indictment to be conducted at the suit of the Attorney General.
However, because of the volume of criminal prosecutions on indictment which are conducted by the State, these functions have been delegated by section 3 of the Prosecution of Offences Act 1974 to the Director of Public Prosecutions. The DPP now conducts most prosecutions in the State.
This does not affect the Attorney General’s responsibilities in respect of the defence of the validity of legislation having regard to the provisions of the Constitution. Therefore, the Attorney General will often have a role in proceedings where a defendant to criminal proceedings seeks to argue that a provision of criminal legislation is unconstitutional. As a result, the Attorney General, the Director of Public Prosecutions and their respective officials will often have to collaborate where criminal trials raise these types of issues.
Responsibility for the management of certain types of litigation and claim taken against the State has also been delegated to the State Claims Agency. The State Claims Agency operates under the aegis of the National Treasury Management Agency which is in turn overseen by the Minister for Finance.
The National Treasury Management Agency (Amendment) Act 2000 allows the Government to transfer responsibility for the management of certain claims taken against State authorities to the State Claims Agency. These include most personal injury and third-party property damage claims against State authorities. Third-party legal cost claims against State authorities are also included in its remit.
The Attorney General retains an oversight role in respect of these claims. Section 10 of the National Treasury Management Agency (Amendment) Act 2000 allows the Attorney General to request information from the State Claims Agency in relation to such claims. The Attorney General is also empowered to give general guidelines in respect of those functions. More specific directions can also be given, provided that the Taoiseach, Minister for Finance and the Minister relevant to the claim are notified.
In practice, the State Claims Agency operates independently from the Government and the Attorney General.