Belfast Telegraph

Monday 20 October 2014

We now need clarity on the role of our guardian of law

The Attorney General's moral position on abortion strikes a chord with the majority of Ulster Unionists, says Mike Nesbitt

Log onto the website of the Attorney General for Northern Ireland and you will read John Larkin define his main responsibilities.

The first is 'Chief legal adviser to the Northern Ireland Executive for both civil and criminal matters that fall within the devolved powers of the Northern Ireland Assembly.'

That could hardly be clearer: his 'day job' is to be on hand as the Executive's primary authority on legal matters.

That's the Executive - not the Assembly, not the Assembly's committees. It's the Executive. And he has to keep them on the right side of the law when they consider legislation, or administrative regimes.

But his duties do not end there. There is his much-publicised, non-statutory role as 'guardian of the rule of law'.

This is a duty you will see spelled out in bold on his advertising material. It's a pretty broad platform from which to operate and it's this role that appears to have underpinned his letter of offer to the Assembly's justice committee to help them investigate the Belfast operation of the Marie Stopes clinic.

I have expressed two concerns about this offer. The first arose when the BBC produced a radio clip where he articulated a striking exposition of his moral position on abortion.

I have no difficulty with that view. He was not Attorney General at the time, had every right to make his moral position known and the position he took is one that would find sympathy with very many Ulster Unionists.

The issue is the extent to which knowledge of that moral position might colour the public perception of his potential input to the committee review.

Perception is, of course, different from fact and I have no difficulty accepting Mr Larkin has the intellectual capacity to interpret the law as it is, rather than as his moral code may wish it to be.

The other concern runs deeper: is the offer to the justice committee an appropriate way to exercise the role of guardian of the rule of law? Given the letter of offer ends with the Attorney General suggesting he could conduct the questioning of witnesses on behalf of the committee, I wanted to meet Mr Larkin to seek clarity on his motivation.

This was in the context of another of his main responsibilities listed on his website: to 'participate in the proceedings of the Assembly to the extent permitted by its standing orders, but not vote in the Assembly.' It is clear from our meeting this week that Mr Larkin is not adverse to being given speaking rights in plenary sessions of the Assembly and also taking questions, possibly even on a regular basis, on a par with Executive ministers.

This would be to embed himself to a point where he might be seen as a virtual 109th MLA, but without the inconvenience of having to seek a mandate from the electorate.

As chair of one of the Assembly's committees, I appreciate the value of members taking legal advice; indeed, at yesterday's meeting of the committee of the First Minister and deputy First Minister, we took legal advice on legislative proposals.

On occasions, the Attorney General may be the right person to offer such advice, but the role and motivation must be clearly understood.

Mr Larkin made clear to me he would not withdraw his letter of offer to the justice committee; I made clear it was up to the committee members to decide how to react to that offer. But I welcomed his assurance that the offer of conducting interviews on their behalf was only an option among a number of possibilities, including being an expert witness, which I would favour.

I suspect public interest in this issue is ending, but the broader debate on the role of the Attorney General is not. My colleague, Lord Laird, has uncovered how Mr Larkin attempted to intervene in a court case in Austria without consulting the UK Government.

Where does being guardian of the rule of law end?

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