THE Constitution should permit delegation of the Attorney General's functions to another senior lawyer with the approval of the Taoiseach, according to the Constitutional Review Group.
The group's report, published yesterday, points out that the volume and complexity of the work dealt with by the Attorney General has increased enormously since 1937. The increase accelerated with Ireland's accession, to the EU and the growth of litigation on constitutional issues.
"The Attorney General cannot handle all of this work personally. Apart from the need to delegate caused by the volume of work, on occasion an Attorney General cannot deal with a particular matter for some other reason such as temporary absence or illness or a conflict of interest."
The report says that in the Constitution there is some doubt about the extent to which the function of legal adviser conferred on the Attorney General may be delegated, "although a cogent argument can be advanced that there must be an implied power to do so".
The group believes that there should not be any doubt, however slight, concerning such an important matter. It wants the problem dealt with by permitting delegation, rather than transfer, of the Attorney General's functions. This is because it was desirable that there should be only one person with ultimate responsibility for advising the Government in legal matters and that person should have the special advantage of the intimate knowledge and understanding of public affairs afforded by presence at all government meetings.
The review group concluded that it was not necessary to recommend any change in the constitutional provisions relating to the Comptroller and Auditor General.
However, it felt a new article should be inserted in the Constitution confirming the establishment of the office of the Ombudsman, providing for the independent exercise of such investigative and other functions of the office in relation to administrative actions as may be determined by law, and making provisions similar to those applying to the Comptroller and Auditor General and consistent, with the amended 1980 Act.
The group felt there was no need to change the Constitution on the referendum system. It said: "The referendum system has worked well in practice and should not be changed."
While it felt a cogent theoretical argument could be made in favour of the preferendum system (which offers voters a range of alternatives), it believed there was no pressing need for change. However, it concluded, it was an issue which might be usefully kept under review, especially having regard to the potentially complex nature of future proposals to amend the Constitution.
The review group was established by the Government in April 1995 to review the Constitution and to establish those areas where constitutional change may be desirable or necessary, with a view to assisting the All Party Committee on the Constitution, to be established by the Oireachtas. It was instructed to take into account that certain constitutional matters, i.e. Articles 2 and 3, divorce, the right to bail, cabinet confidentiality and votes for emigrants were subject of separate consideration.
The group was chaired by Dr T.K. Whitaker and the members were: Mr David Byrne SC, Dr Alpha Connelly, Ms Mary Finlay SC, the Attorney General, Mr Dermot Gleeson SC, Mr James Hamilton BL, Mr Mahon Hayes, Mr Gerard Hogan BL, Professor Aine Hyland, Dr Finola Kennedy, Professor Michael Laver, Dr Kathleen Lynch, Mr Diarmuid McGuinness BL, Dr Dermot Nally, Dr Blathna Ruane BL.