From Smyth to Mr A: will we never learn?

IN 1994 a Government fell, and these were the circumstances. There had been growing tension between the parties in Government over a number of difficult issues.

These tensions came to a head over the wish of the Taoiseach, Albert Reynolds, to appoint the then Attorney General Harry Whelehan as President of the High Court.

It was discovered, and reported in a BBC programme, that a warrant for the arrest of Brendan Smyth, a paedophile priest, and his extradition to the North, had lain unattended in the Attorney General’s office for months. When Whelehan was asked by the Government to explain the delay, he said in a report to the Cabinet that the official involved had been very busy, and that furthermore the case had raised a number of complex legal issues that had never arisen before. That was why the extradition papers had never been brought to the Attorney’s attention, nor presented to him for signature. So he had known nothing about it until the publicity after the BBC programme.

Nearly half the Cabinet found this explanation unsatisfactory, especially as they were told that the Attorney would be making no public statement or any statement to the Dáil. So they refused to support his appointment to the High Court. But the majority voted for the appointment anyway, and that led to a major political crisis.

Over the following weekend, the opposition tabled a motion of no confidence in the Government. A new Attorney General was appointed, and he prepared to advise the Government on all the facts surrounding the Brendan Smyth case. In doing so, he discovered that in fact the “legal complexities” surrounding the Smyth case had all been dealt with before, in an earlier case involving a monk called Duggan. The official, Matt Russell, who had been unable to deal with the Smyth case, had worked on the earlier Duggan case, and Harry Whelehan, who never heard of the Smyth case until it was too late, had signed the warrant in the Duggan case.

When the Taoiseach went into the Dáil to defend the motion of no confidence, this is what he said: “I am informed that the former Attorney General had forgotten about the Duggan case when he prepared and approved the report sent to me. I am informed that the official in the Attorney General’s office involved in the preparation of the report was similarly not conscious of the existence of the case when the report was prepared. In fact, the official who dealt with the Duggan case did not remember it when requested to assist in the Attorney General’s investigation ... However, the report was seriously misleading on this issue. If the former Attorney General was still in office he would have to account for this report. His responsibility would be particularly grave as he cleared the warrants in the Duggan case and his signature is on the relevant submission. If the Attorney General was still the holder of that office he would, in the circumstances, have no option but to resign ...”

That wasn’t, as it turned out, the end of the story, and ultimately more facts came to light which led to the Taoiseach’s resignation on that occasion.

But after the Taoiseach resigned, and a new Government was appointed, a team of senior civil servants was appointed to try to establish how it could have happened that something so significant could have gone missing in the Attorney General’s office. Ultimately, the head of the office, Matt Russell, also resigned. More to the point, the committee found that the management and running of the office was disastrously old-fashioned, to the point where major things could be happening, that had serious long-term implications, without the Attorney General or the Government knowing about them. Consultants were appointed to put proper systems in place to ensure this would never happen again.

WHAT are the major things that occur in the Attorney General’s office? Well, the mission statement of the Office says that the “mission of the Office of the Attorney General is to provide the highest standard of professional legal services to Government, departments and offices”. Constitutionally, he (or she, though there has never been a woman in the job) is the legal adviser to the Government and is therefore the chief law officer of the State. He advises the Government on all legal matters, represents the Government in all legal proceedings, and has overall responsibility for the drafting of all legislation. There is one exception — since 1974 the responsibility for the prosecution of crimes is mostly in the hands of the Director of Public Prosecutions who is by law independent of the Attorney General. However, in exceptional circumstances there is provision in the law for what is called a “statutory consultation” between the AG (representing the Government) and the DPP.

You can see why it is so important that the systems are in place to ensure that the AG knows what is going on, and that he can keep the Government advised. A major part of the AG’s job is to warn the Government about the legal consequences of their actions, and also to warn about legal consequences of events outside their control. The systems that were put in place after the 1994 situation were designed specifically to ensure that the AG would always be in possession of critical information.

One other fact is relevant here. Whenever anyone sues Ireland, it is the AG who represents the State. Whenever anyone wants to challenge the Constitution, it is the AG who defends it. Sometimes, if a challenge arises under the Constitution as part of criminal proceedings, the lawyers already hired by the DPP will take it on as part of the overall case. But the AG’s office will always be called in, because they must be. The system designed after 1994 was put in place to ensure that the AG was fully advised and able to warn the Government.

So when we’re told that the AG didn’t know, the minister didn’t know, and the Government didn’t know anything at all about a major constitutional action that would have devastating implications, something has gone terribly wrong.

When Albert Reynolds spoke in the Dáil about Brendan Smyth, on November 15, 1994, he said: “I must, today, explain the failure of a system in this specific case; a failure with ghastly and specific consequences for the children of this country. I must not excuse the failure: I must ensure that it never happens again. I will give this House a full and detailed report, but a full and detailed report of a failure in our method of dealing with such a crime as child sexual abuse will never and can never be satisfactory.”

Here we are again, 12 years later. Will we never learn?