Revealed: advice given to MLAs on Attorney General’s abortion row intervention
Published 17/11/2012 | 08:00
The Attorney General’s offer to assist Stormont’s justice committee in an investigation of a Belfast abortion clinic has been comprehensively rejected by Stormont lawyers, the Belfast Telegraph can reveal.
Confidential legal advice given to the justice committee on the subject, which has been obtained by this paper, reveals that lawyers believe John Larkin’s offer to act as “counsel and questioner” is not permitted by the Justice Act.
The revelation came at the end of a difficult day for the Attorney General.
The BBC also reported last night that the First Minister was warned not to appoint him in a 2009 letter from DUP MP Ian Paisley jnr.
He was earlier involved in controversy after Northern Ireland’s senior coroner suspended 14 inquests that Mr Larkin had ordered.
John Leckey (below) said that Northern Ireland's coroners had arrived at a view that the Attorney General may have overstretched his powers.
“Clearly, the Attorney General takes a view as to his jurisdiction and powers which is diametrically opposed,” he said.
The coroner has referred the matter to Northern Ireland Secretary of State, Theresa Villiers, to seek clarification, as national security issues are not devolved to the Assembly and remain a matter for the Northern Ireland Office.
Later in the day the justice committee decided to reject Mr Larkin’s offer to act for it in an investigation into the Marie Stopes clinic in Belfast. Instead it will call him as a witness.
Last month the Attorney General wrote to the justice committee inviting it to investigate Marie Stopes, which has said it will provide abortions at its new office in Belfast.
Mr Larkin said he would be happy to give every possible assistance, including acting as counsel and questioning witnesses on its behalf.
He later provoked controversy when it emerged that in an interview he had given to the BBC before he was appointed Attorney General, he had compared the late abortion of a disabled child to shooting a child in the head following birth.
The Assembly’s legal advisers delivered their verdict in a 17-page confidential document, marked ‘Restricted — Legal Privilege’, which was presented at a closed session of the justice committee yesterday.
- The report cautions against taking any of the actions suggested by Mr Larkin beyond calling him as a witness.
- It also points out that it is up to the PSNI and the Director of Public Prosecutions to investigate crime.
- It warns that his proposed inquiry is outside the committee’s remit and “not a prudent basis for which to seek to exercise the power to call persons and papers”.
- It states “for the Attorney to act as counsel and questioner amounts to participation in Assembly proceedings, and is therefore currently not permitted by the Justice Act”.
- It concludes “the proposal should at present be declined”.
Mr Larkin is a renowned constitutional lawyer but the Assembly’s legal advisers nevertheless say there are “constitutional tensions implicit in his proposal to act as a counsellor and questioner” at meetings.
This is partly because the Attorney General is the principal legal adviser to the Executive ministers, but not to Assembly committees.
There are fears among ministers that taking part in the committee could compromise his independence when offering them advice.
The lawyers whose job it is to advise the Assembly appear to share these ministerial concerns.
Mr Larkin had mounted a legal argument that it would not be participation, but the lawyers reject this. They say that the ordinary meaning of participation was “taking part” and that should be accepted.
A spokesman for the lawyers wrote: “I suggest that the committee should instead invite the Attorney to engage at present by the more traditional route of giving evidence.”
The committee has taken this advice and is calling Mr Larkin as a witness on abortion law, rather than a general inquiry on whether Marie Stopes is obeying the law. It says that the legal presumption of innocence must pertain.
It also warns that if Mr Larkin advised the committee, as he proposed, his advice would be disclosable under the Freedom of Information Act and would not be accorded client confidentiality.
Politicians were last night absorbing the implications.
An Alliance Party spokesman expressed “concerns about the Attorney General's involvement in a justice committee investigation of Marie Stopes”. He added: “If this report proves to be accurate then others it would appear share our concerns.”
The UUP’s justice spokesman Tom Elliott said the decision by Mr Leckey to refer 14 cases to the Secretary of State is “of real concern”.
He added that concerns over Mr Larkin “all flow from his interpretation of his role as the guardian of the rule of law and the extent to which he sees himself becoming involved in Assembly proceedings”.
Our legal supremo should really stick to his day job
By Liam Clarke
Yesterday was a bad day for John Larkin, our Attorney General.
He has only been in the post around two-and-a-half-years but he’s been busy.
Yesterday’s decision by John Leckey, the Belfast coroner, to refer 14 inquests Mr Larkin ordered to the Secretary of State was just the latest in a string of occasions when senior figures have dismissed his legal advice.
As Tom Elliott of the UUP pointed out, Mr Leckey fears that Mr Larkin has exceeded his brief and strayed into matters of national security.
Misgivings about Mr Larkin’s interpretation of the law were also expressed in 17 pages of legal advice given to the Assembly justice committee. The Government lawyers cautioned the committee that heeding his controversial proposals on the Marie Stopes issue would be “outwith the committee’s vires”. That means “you can’t do it”. They call it “neither safe nor prudent”.
In another section they talk about needing new legislation to implement his advice, though Mr Larkin was supposed to be advising on the existing law — a crushing putdown.
It is not long since the British Government wrote to the European Court distancing itself from an intervention Mr Larkin made in an adoption case involving two Austrian lesbians.
MPs in all parties condemned him for dredging up the medieval offence of “scandalising a judge” against Peter Hain.
Now the law may be changed, earning Mr Larkin a footnote in the textbooks. The justice committee was advised that, in addition to his statutory role as an adviser to ministers, “he has also taken on a mantle as ‘guardian of |the rule of law’” — although nowhere is it mentioned in legislation.
Our Attorney General should stick to the day job, and stop trying to push the boundaries of his role.