The Attorney General, Rossa Fanning, has been in the news twice this week and it is still only Friday. On Wednesday he leapt to the defence of the Irish economic model at a conference on commercial dispute resolution. Our economic success was not “leprechaun economics”, he told an audience of international lawyers.
On Tuesday it was reported in The Irish Times that before he took up his role in December, he had been involved in advising the Chinese telecoms giant, Huawei, about the constitutionality of new powers, which were being contemplated by the Government, to force companies off Irish telecoms networks for reasons of national security.
Fanning co-wrote a 44-page legal opinion for Huawei with barrister Niall Buckley, under instruction from solicitors Philip Lee. The document was sent to IDA Ireland, the inward investment agency, and forwarded later to the Department of Enterprise, Trade and Employment.
The draft law on these powers was partially changed in February of this year and was signed into law in March. The change could be construed as helpful to Huawei and other large telecoms companies. But the Government has made it clear Fanning gave no advice as Attorney General in respect of the Bill.
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It is obvious that if you pluck one of the country’s leading commercial barristers out of the Four Courts and install him on Merrion Street as the Attorney General there will be questions about conflicts of interest. It’s also obvious that they can be managed. Is such scrutiny really warranted? Perhaps not, but it’s inevitable given his profile.
There have been 22 stories mentioning Fanning in The Irish Times over the last six months. And that’s just one media outlet. He also appeared in the Business Post this week. The extent of the coverage of Fanning is not out of kilter with that of his recent predecessors but it seems like a lot of headlines for someone whose job is to provide legal advice to the Government. However, his prominence is not really a reflection on Fanning, but more a consequence of the outsize role of the attorney general in the Irish political system and the media attention that comes with the territory.
One obvious reason for the attorney general’s high profile is that the job attracts a high calibre of individual. It’s an important, prestigious and influential job. For many incumbents it’s a step on the road to becoming a High Court judge or more.
The attorney general is more often than not a practising barrister and Fanning, like predecessors, took a break from his successful practice in the Law Library to do a job paying a little more than €180,000 a year. He attends Cabinet and other Government meetings.
Given the intellect and skills of the individuals involved – compared with the average cabinet minister – you would presume people listen when the attorney general gives advice. The notion of public service clearly has an appeal but the power to influence events can be a reward in itself.
The calibre of the individual is not the only reason for the job’s unusually high profile and probably not the main one.
Governments don’t like making unpopular decisions, full stop. Individual politicians hate being personally associated with such decisions. One of the ways they do this is to wheel out legal advice from the Attorney General to provide some political cover
The Attorney General is a political office and that is reflected in the fact it is one of the jobs that gets divvied up, along with ministries, when coalition governments are formed. Fanning took over in December when the Taoiseach’s office rotated between Micheál Martin and Leo Varadkar. The previous occupant was Paul Gallagher – another very successful barrister. He had served in the role under two previous Fianna Fáil taoisigh but, like Fanning, was not seen to be political.
It is the exception rather than the rule for the attorney general to be an elected politician. Only a handful of the 32 holders of the office have been TDs or senators. The fact that so many attorneys general come from outside mainstream politics burnishes the perception that, despite being political appointees, their advice is impartial and inviolable. The job – like that of any lawyer – is to give their client objective legal advice.
This independence is a valuable asset from the Government’s perspective. It allows them be something of a political mudguard when needed.
[ Attorney General’s nursing home charges report as much about politics as the lawOpens in new window ]
Governments don’t like making unpopular decisions, full stop. Individual politicians hate being personally associated with such decisions, even if they might privately support them. One of the ways they do this is to wheel out legal advice from the Attorney General to provide some political cover.
Fanning got a taste of this aspect of his role early on in his tenure as the Government tried to justify its adversarial legal strategy for dealing with cases taken by individuals affected by illegal nursing home charges and others denied disability payments. The issue predated Fanning’s appointment, but the Government sought an assessment from him – it concluded that the advice given by his predecessors was “sound, accurate and appropriate”.
His report was duly published, and the Government tried to move on. It was not that simple. The court of public opinion did not side with the Attorney General, and he came in for some criticism, which it is unlikely he enjoyed. But his enthusiasm for the role seems undiminished, as does the media attention that goes with it.