“There shall be an attorney general who shall be the adviser of the government in matters of law and legal opinion,” reads article 30 of Bunreacht na hÉireann. The most important words here are ‘adviser’ and ‘law’. The attorney general’s constitutional role is to give legal advice to the government. That’s his or her job – it isn’t to act as a government policy adviser nor public relations consultant nor fixer of state-inflicted wrongs.
The job shouldn’t include these duties but sometimes does. These are the intermittent, distasteful responsibilities of the attorney general we aren't supposed to talk about.
Earlier this week newly appointed attorney general Rossa Fanning inadvertently gave us an opportunity to do so when he gave lie to the myth that the office is strictly legal and apolitical.
Government asked him to draft a legal report on the state’s institutionalised policy of forcing those who’d been illegally charged nursing home fees into accepting settlements less than their entitlements. The finished document turned out to be a slavish ode to government and state, as well as the way that state is constituted, whom it serves and protects and whom it fights – the way it’s always been and, we can deduce, should continue.
The first quarter of the report included a bloviating defence of political decisions made by governments past and present and condescended to the public with a one-sided history lesson on how responsibly the state spends its money. It might as well have been written by a political spin doctor. Donald Trump’s former chief strategist Steve Bannon said the way to win in politics is to “flood the zone with shit”.
This is what Fanning did in his report.
The benevolent state? Tell it to Brigid McCole and tell it to David Norris
“Governments must make hard choices all the time, with finite resources, and the requirement to defend litigation that seeks to challenge those choices ineluctably follows,” wrote Fanning.
He knows well the majority of judicial review applications don’t involve challenges to the government’s choices nor how it allocates resources. Most involve applicants challenging how a particular department or state agency has applied legislation or policies already introduced by the government.
But Fanning continued in disingenuity. “When electing to defend litigation, it must be emphasised that the state always does so in the ‘public interest’. But the ‘public interest’ must of course always extend to considering the position of the taxpayer who is called upon to fund every new benefit agitated for.”
While Fanning conjured hordes of greedy litigants using the courts to “agitate” for “new benefits”, these courts wouldn’t entertain litigants asking them to compel the state to introduce new entitlements. That's not how it works.
Fanning used the mica redress scheme as an example of the state deploying its financial resources in the absence of any “legal obligation” to do so. He however neglected to tell us that last year lawyers representing mica-affected families filed 600 yet-to-be-decided cases against the state. The “legal obligation” Fanning speaks of hasn’t been decided by the courts, so he should have held off on the accolades.
His report veered into the absurd when he claimed “the state endeavours to be far less adversarial in its approach to litigation than is characteristically the case with private litigants”.
Try telling that to the scores of autistic children whose parents, in recent times, had to bring High Court challenges against the state because the HSE refused to comply with its obligations under disability legislation. Tell it to the women who sued the state over the cervical check scandal. Tell it to Brigid McCole and tell it to David Norris.
The ultimate conclusion in Fanning’s report was of a state whose only crime was protecting taxpayers from unreasonable and uppity ingrates looking for more than they deserved.
But it wasn’t all bad.
More consigliere than legal adviser
There was an unintended positive from the report: it's no longer an open secret that part of the attorney general’s role is to act as a sort of consigliere when the state needs to find a way to deprive people of their entitlements. Something that can include secretly using information from private medical records of children with autism who were involved in legal actions against the state so it could grind financially vulnerable parents into submission.
Without realising it, Fanning exposed the true nature of his role, a politico-legal mudguard for the state’s most reprehensible actions against its people. Officially, a legal adviser, unofficially a fixer.
But as former attorney general Seamus Woulfe will attest to, acting as the state’s loyal legal rottweiler comes with its rewards, in Woulfe’s case an undeserved appointment to the Supreme Court and a free pass when he was caught flouting lockdown rules.
Recently departed attorney general Paul Gallagher also showed us some of the more unedifying aspects of the job when he was rolled out to declare that Leo Varadkar hadn’t broken the law when he attended Katherine Zappone’s Merrion Hotel party during the coronavirus pandemic.
The AG: attorney general or attorney genie, a figure whom government can magically appear overnight to absolve politicians of wrongdoing, but also use as an excuse for indefinitely delaying the publication of independent reports that make the state look bad.
Still though the idea persists that the office and figure inside is an infallible deity whose word is beyond reproach.
The legal arguments advanced by Fanning are best left to those qualified to interrogate them. But, as is often the case with the attorney general, his straying into the territory of public relations and policy – and use of the artifice of his office for cover – is every bit as important, if not more so, than matters of law.
He knows that. So does the state.