Organisation information
Brief History of the Office of the Attorney General: An Evolving Position
From Office of the Attorney General
Published on
Last updated on
From Office of the Attorney General
Published on
Last updated on
Hugh Kennedy KC was the first Attorney General of an independent Ireland. He took up office as Attorney General of Saorstát Éireann in March 1923. This followed a period of service as the ‘Legal Adviser’ and ‘Law Officer’, in turn, to the Provisional Government. However, as legal journals noted at the time, “his appointment now is a change in name rather than any difference in his functions in the Government”.
However, the role fulfilled by the Attorney General has existed, in different forms, for much longer than that. The Attorney General’s functions and powers are similar to those of law officers before independence (as the Irish Free State) and the subsequent 1937 Constitution. Section 6(1) of the Ministers and Secretaries Act 1924 gave the Attorney-General of Saorstát Éireann the powers and functions of a number of officers of the pre-independence regime, including the Attorney-General for Ireland, the Solicitor-General for Ireland, the Attorney-General for Southern Ireland, the Solicitor-General for Southern Ireland, and the Law Adviser to the Lord Lieutenant of Ireland. The 1924 Act also gave the Attorney-General of Saorstát Éireann responsibility for the administration and control of the Parliamentary Draftsman and the Chief State Solicitor. Nevertheless, in substance, each of these offices refers, as former Supreme Court judge Hugh Geoghegan put it, “to the same animal”.
With the passing of the 1937 Constitution, Article 30 established the constitutional office of the Attorney General. Article 30.1 of the Constitution provides that:
“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.”
The Constitution ensured there was no disruption between this Office and its direct predecessor, the Attorney General of Saorstát Éireann. Article 59 provided that:
"On the coming into operation of this Constitution, the person who is the Attorney General of Saorstát Éireann immediately before the coming into operation of this Constitution shall, without any appointment under Article 30 of this Constitution, become and be the Attorney General as if he had been appointed to that office under the said Article 30."
This, along with section 4 of the Constitution (Consequential Provisions) Act 1937, ensured that then Attorney General Patrick Lynch stayed in office from December 1936 to March 1940 without interruption.
While some suggested that Article 30 only continued the same office under a different name, this idea has been rejected. The Irish Courts have repeatedly confirmed that the Constitution did indeed a “create a new office”.
Aside from this brief history, the Irish terms in which the Constitution describes the Office are interesting. The Attorney General is called “An tArd-Aighne”. This is noteworthy, as the term “Aighne” is not a common Irish term. A barrister is an “abhcóide”. More generally, a lawyer is a “dlíodóir”.
Ó Dónaill’s Irish-English Dictionary defines "Aighne”, without the “ard” – which means high or chief - as “pleader” or “advocate”. Other translations repeat this description, but add that “Aighne” also means “one learned in law or in the practice of law”. The word is an Old Irish term. Historically, it described lawyers under Ireland's legal system before the Norman invasion. This was known as the Brehon Law system.
The Attorney General is helped in his or her constitutional functions by nearly 480 staff. These are spread across the different parts of the Office of the Attorney General, and include the Chief State Solicitor’s Office (CSSO). However, it has not always been this way.
Staff shortages were once much more acute. For a five-month period between 1921 and 1922, there was no Attorney General in Ireland at all. Indeed, in January 1922, a case, McDermott v Attorney General, was adjourned by the Court of Appeal as one of the parties did not actually exist.
Hugh Kennedy, the first Attorney General, wrote to the Minister for Home Affairs in May 1922, complaining of:
“the immense volume of work which is passing through my office. Files from all Ministers and Departments… not only with questions of law and procedure, but also requiring the drafting of documents, etc.”
Subsequently, a junior counsel was appointed to help the Attorney General. However, this support was neither full-time nor permanent. Indeed, it was only in 1929 that the first Legal Assistant to the Attorney General was appointed. This was Philip Donoghue, who had previously worked as a District Justice in Cork. The Office of the Attorney General has steadily grown since, with more than 80 lawyers currently based in the Office on Merrion Street. This figure does not include either the lawyers employed in the Chief State Solicitor’s Office or the support staff working in both offices.