A One Person Supreme Court? The Attorney General, Constitutional Advice to Government, and the Case for Transparency

Dublin University Law Journal (2020, Forthcoming)

35 Pages Posted: 27 Nov 2019 Last revised: 20 Apr 2020

See all articles by David Kenny

David Kenny

Trinity College Dublin School of Law

Conor Casey

European University Institute

Date Written: April 1, 2019

Abstract

The Irish Attorney General's Office seemingly plays a major role in Irish politics in advising the government on the constitutionality of Bills and policies. With scant basis in the constitutional text, this advice appears to have become central to policymaking, with the executive regarding it as a near-binding determination of constitutional issues, and allowing policy to be halted by this advice. Yet the advice itself is almost never published, and is not open to public or political contestation or debate. In this paper, we attempt to map the role and influence of the Attorney General in Ireland based on the limited available information, and critically examine the office's independence, its apparent influence on policy, and the apparently belief of government that its advice is binding. We conclude that either the AG distorts policymaking, or that its advice is capable of misuse by government to justify its action or inaction, but that without full access to its advice we cannot tell which. We conclude by arguing that transparency in this process is essential so that we might know the true influence of the office, and so that parliamentarians and the people could engage in debate about this advice and contest it where appropriate.

Keywords: Constitutional law, Irish constitutional law, political constitutionalism, pre-enactment review, constitutional review, judicial review, Irish politics

Suggested Citation

Kenny, David and Casey, Conor, A One Person Supreme Court? The Attorney General, Constitutional Advice to Government, and the Case for Transparency (April 1, 2019). Dublin University Law Journal (2020, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3486953 or http://dx.doi.org/10.2139/ssrn.3486953

David Kenny (Contact Author)

Trinity College Dublin School of Law ( email )

College Green
Dublin 2
Ireland

Conor Casey

European University Institute ( email )

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