Dr Conor Casey

Drawing on the natural law tradition and arguments developed in his extensive work on administrative and constitutional law, in a series of recent essays the prominent public law scholar Adrian Vermeule has argued the time has come for legal conservatives in the United States to set originalism aside. In its stead, Vermeule argues conservatives should approach constitutional interpretation in an openly morally infused way and open to using state power to promote the common good - an approach to constitutionalism Vermeule dubs ‘common-good constitutionalism’. Vermeule’s proposal immediately sparked extensive and heated responses across both conservative and liberal legal circles. This essay is the first to offer a sustained scholarly analysis of this burgeoning debate. I have two main objectives: one explanatory, one critical. The first objective is to offer a clearer account and appreciation of what proponents of common-good constitutionalism are advocating for. This is necessary as I suggest that, unfortunately, many preliminary critiques of the concept have been awash with analytical imprecision and overstatement. I therefore wish to clarify the core terms and concepts pertinent to Vermeule’s brief essay: by digging deeper into the political context from which the call to adopt common good constitutionalism emerged, before outlining its core operative principles and their broader intellectual underpinning. My second aim is to critically analyse Vermeule’s arguments by addressing the initial wave of criticism hostile to the proposal. Contrary to these critiques, I suggest Vermeule’s proposal is entirely consistent with the natural law legal tradition and emphatically not an argument for authoritarianism unbound from legal and democratic constraint or concern for human rights. I conclude critiques starting from the premise common good constitutionalism is effectively a form of anti-constitutional authoritarianism are not only inaccurate, but deeply unhelpful to fruitful engagement over the core questions Vermeule’s arguments raise for public lawyers.

Political constitutionalism understood in terms of autonomy of political judgement rather than allocation of powers – Irish case studies as example – Judicial doctrines recognise political discretion concerning rights – However, legalism or legal constitutionalism arises within the sphere of political judgement itself – Legal constitutionalism restricts political autonomy epistemically as well as institutionally

The House of Lords Constitution Committee is currently investigating the role of the Law Officers. The Committee have outlined several questions that frame its inquiry, including whether it is “appropriate or helpful for the Law Officers, as Government legal advisers, to be politicians serving in Government?” The inquiry may be the most thorough examination of the Law Officers since the period 2007-2009, during Prime Minister Gordon Brown’s campaign for constitutional reform. It was clear at that time some in the then Labour Government were open for reform, with Prime Minister Brown announcing to the House of Commons that the office of Attorney General “needs to change”. Around the same time, the House of Commons Constitutional Affairs Committee and House of Lords Select Committee on the Constitution both issued reports concerning potential reform, with the former advocating significant change. The Commons Committee recommended reform along the lines that responsibility for providing legal advice to government and superintending the prosecution services should be vested in a statutorily independent career lawyer and not a politician or member of the Government. In the end, however, Government and Parliament did not proceed with significant reform. While some recommendations made by the House of Commons Committee were received positively by the Labour Government (even if not acted upon in the end), its most consequential proposals were rejected. Although the then Government initially appeared enthusiastic about the prospect of reform, in the end they definitively rowed back from the idea. The recommendations of the current House of Lords Constitution Committee – whose members include a former Supreme Court president, Lord Chancellor, and Solicitor General – will no doubt spark renewed debate on the Attorney General and its proper role in the constitutional order. The United Kingdom currently faces a daunting set of challenges, including navigating the complex socio-economic problems and opportunities facing Britain post-Brexit, the ongoing fallout from the Russian invasion of Ukraine, rising food and energy costs, political deadlock in the Northern Irish Assembly, potentially significant legislative reform of human rights protection, and the possibility of Scotland leaving the United Kingdom, to name just a few. These issues will raise countless thorny legal and constitutional issues, about which the Prime Minister and his Cabinet will invariably turn to the Attorney General for legal advice and guidance. The Office plays a critical role in the constitutional order and questions concerning its reform should therefore be subject to serious debate and reflection. This report aims to contribute to ongoing debates by arguing that the Labour Government under Gordon Brown acted wisely by rejecting significant constitutional reform, and that current political actors should follow suit. As such, I offer a defence of the institutional status quo of the Law Officers. I suggest that the current configuration of the Attorney General (and Solicitor General), as a law officer with legal and political dimensions, works well. I also argue that the costs of moving to an alternative model of Attorney General could be steep and not worth incurring given the overall robust health of the contemporary Office. However, my defence is qualified in that I suggest several moderate reforms would be prudent to ensure proper balance is maintained between the political and legal dimensions of the office, so that the former does not compromise the latter. I proceed in five parts. Part I offers an overview of the Attorney General’s Office and its diverse set of functions and responsibilities. This part provides an account of the dual legal-political nature of the office that I defend. Part II outlines the strongest critiques of the office and why calls for reform arise intermittently. Part III offers a defence of the office and argues that successive Attorneys General have, for the most part, maintained appropriate balance when simultaneously carrying out their role as legal advisor and guardian of the public interest and rule of law on the one hand, and their position as a member of government on the other. I also argue that when appropriately balanced, the political and legal elements of the Attorney General are complementary to each other. Part IV analyses several different constitutional systems to probe the potential political risks of alternative models of apex legal advisors. I suggest in light of the overall robust health of the office that such risks are not worth incurring. Part V outlines a slight qualification to my defence, which is that several reforms would be prudent responses to some legitimate concerns raised in part III and would help solidify appropriate balance between the dual dimensions of the Attorney General’s Office. A brief conclusion follows.

The United Kingdom’s decision to invoke Article 50 of the Treaty on European Union triggered serious ripples across its constitutional order, including repeat clashes between Parliament and the Government. This friction reached a crescendo in 2018, following the former’s unprecedented decision to hold the latter in contempt for refusing to obey its request to publish the Attorney General’s full legal advice on the Government’s draft Withdrawal Agreement with the EU. One of the many interesting constitutional issues thrown into sharp focus by this event, was the important relationship between executive power and the legal advice-giving role of executive lawyers. Using the UK and Ireland as illustrative examples, this essay considers how the work of executive lawyers interacts with executive authority. I argue that their legal advice can be important in supporting the executive’s political narratives about the basis for controversial policy action or inaction and is deployed by the executive to enhance its perceived legal credibility and political legitimacy. Its relationship to exercises of public power deserves greater positive and normative scrutiny, both in each system and from a comparative public law perspective more broadly.

This essay offers an account of the diverse range of rich insights Professor Finnis’s work offers for several perennial questions of constitutional theory: such as what valuable moral ends constitutional law serves, how best to approach the design of constitutional arrangements and institutions, and how to best approach constitutional interpretation. I proceed in four parts. The first two parts begin by looking at Finnis’s treatment of the purpose of law as a social practice and then, more specifically, the point or purpose of channeling political power through constitutional law. Having outlined the point or purpose of constitutional law and constitutional institutions, I then probe what Finnis has to say about questions of constitutional design. Finally, I give an account of how Finnis’s work approaches constitutional interpretation.

Damache v Minister for Justice concerned a constitutional challenge to section 19 of the Irish Nationality and Citizenship Act 1956. This section outlined the statutory process the executive branch, acting through the Minister for Justice, had to follow before revoking a certificate of naturalisation. The appellant successfully argued this process was an unconstitutional breach of fair procedures. The judgement will be of interest both to Irish and other public lawyers for its treatment of fair procedures, which the Supreme Court approached in a regrettably blinkered way - seeing only one constitutional principle when several others were at stake. The judgment is a stark reminder for both Irish and comparative lawyers of the fact that the concrete demands of fair procedures must be balanced with a range of competing institutional goods and principles equally important to constitutional democracies: from administrative efficiency to structural principles stemming from the separation of powers.

This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism. Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin. Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.

The growth in the power of the executive branch of government has been accompanied by a related growth-heretofore unexplored in the literature on comparative constitutional law-of the role and importance of executive legal advisors. These influential but often secretive advisors can be the first-and sometimes the only-group to review the actions of the executive or legislative proposals before enactment, for compliance with the constitution. In this article, we compare this practice in four similar but somewhat distinct jurisdictions-the United Kingdom, Canada, the United States, and Ireland-to assess its impact on constitutionalism and the executive power. We conclude that the practice of constitutional review by executive lawyers is highly variable, changing between places and over time along four key axes that can either empower or constrain the executive to varying degrees. It can restrain executive action by holding it within constitutional boundaries; it can bolster the executive power by giving legalistic credibility to its actions while providing little restraint in practice; or it can create policy distortion by overly tightly binding executive and legislative action. Constitutional advice from executive legal advisors, then, does not operate as an exogenous constraint on executive power, but can be structured and manipulated by the executive to have various different effects. As such, we argue that this institution requires much more attention from both comparative constitutional lawyers and constitutional designers to map its effects on the constitutional order and to see what structures, processes, and cultural factors might shape it. Finally, we argue for increased transparency in the provision of executive constitutional advice, as without this, even understanding its effects is extremely difficult.