The Globalist

In the event, Sutherland lost the election. He secured 1,969 votes, or 6.24 per cent of the votes cast and promptly lost his deposit. Overall, though, it was a respectable performance. He had come sixth out of ten candidates: Jim Tunney of Fianna Fáil came first, Byrne took the second seat, David Thornley of Labour took the third and Fianna Fáil’s Richard Gogan took the fourth. It was one of the few setbacks in Sutherland’s career. According to Garrett Sheehan, however, losing the election did not greatly distress him: ‘If it was a disappointment, it was a very brief one.’

Mark FitzGerald, Garret’s son and the owner of auctioneering firm Sherry FitzGerald, the biggest in the country (FitzGerald sold Sutherland’s Foxrock home when he moved to Sydney Avenue in Blackrock in 1976), had politics in his blood; indeed it was one of his main passions in life. In an illustration of the tight-knit social circles in Dublin, Mark FitzGerald first met Sutherland at a party thrown by the latter’s sister Karen in 1974. Mark, who was there with one of his good friends Gerry Sheehan, a younger brother of Garrett Sheehan, says that Sutherland harboured a desire to have another go at seeking election and that he probably regretted that the opportunity never arose, but his career took a different path. ‘But I think when he got involved later in life and the whole migration thing, the commitment to public service was definitely about that. His business career was about giving him the financial independence ultimately to go back into public service. That’s what I felt about him. That’s what my father felt about him,’ adds Mark.

Happenstance played a prominent role in Sutherland’s career trajectory. Exploring alternative scenarios in the lives of public figures can throw up some interesting counter-narratives, and in Sutherland’s case more than most. For example, what would have happened if Sutherland had been elected in 1973? One former colleague said he wouldn’t have had the patience to sit on the backbenches. It is also doubtful he would have relished the endless constituency clinics and funeral attendances required to ensure re-election. Nor, if elected, would he probably have become attorney general in the next Fine Gael government. And it was because of Fine Gael’s wafer-thin majority at the time that Sutherland got the nod to go to Brussels as Ireland’s European commissioner. That was the launch pad for international stardom. On the other hand, the one role Sutherland prized more than any other in his life was to become president of the European Commission. It is normally a pre-condition that candidates for this position have been elected to office.

When Fine Gael and Labour formed a coalition following the 1973 election, Sutherland went back to the Bar and worked on what was now a thriving practice. The next general election in 1977 was not a good one for Fine Gael; it went from fifty-five seats down to forty-three, while Fianna Fáil surged from sixty-five to eighty-four seats and was able to form a government. Liam Cosgrave stood down as leader of Fine Gael and was replaced by Garret FitzGerald.

Sutherland may have stood back from the political fray in the mid-1970s, but his relationship with the FitzGerald family blossomed over that period, Mark FitzGerald recalls. ‘They had a very close relationship and Peter and Maruja would have come to dinner a lot. They got on with my mother. Peter got on particularly well with my father, but my mother also. He was very close to my mother.’ Sutherland’s relationship with Joan FitzGerald would play a crucial role in one of his most important career moves.

The 1973–7 government contained some heavyweight figures. Garret FitzGerald was Minister for Foreign Affairs, Justin Keating Minister for Industry and Commerce. Michael O’Leary was appointed Minister for Labour, Conor Cruise O’Brien Minister for Posts and Telegraphs and Peter Barry Minister for Transport. Historians of that era generally agree that there has rarely been more intellectual heft sitting around a cabinet table. But that was too little to put the country on the right path. The government was a victim of unfortunate timing: Ireland had experienced a rare spurt of economic growth in the early 1970s, but by 1977, the oil crisis had tipped the economy back into recession. The government reconfigured every constituency boundary in the country in ways that allegedly benefited Fine Gael and Labour. Despite the best efforts of the coalition to rig the election in its favour, Fianna Fáil swept to a crushing victory.

After the 1977 election, Peter Prendergast took over as Fine Gael’s national secretary and initiated a party-wide restructuring. A steering committee was set up to formulate party policy, its members including Sutherland alongside Derry Hussey, Jim Mitchell, Peter Barry and some senior unelected party members. ‘Peter was a very valuable member, to put it mildly,’ says Gemma Hussey, who first got to know Sutherland around this time.

According to Prendergast, Fine Gael’s grassroots organisation was in a parlous state. A two-pronged strategy was proposed to put the party back in power. First was the establishment of structures that would put Fine Gael on a much more competitive footing before the next election. Running parallel to this process was the creation of a coherent policy platform. Sutherland was a key player in putting the party’s manifesto together. The preparation paid off: Fine Gael reversed many of its losses in the 1981 general election.

Brendan Halligan first met Sutherland in the late 1960s. An economist by education, Halligan had a lifelong association with the Labour Party. He was a TD, an MEP and the party’s secretary general over a period of three decades. Another committed Europhile, he set up the Institute for International and European Affairs (IIEA), a think tank, in Dublin and developed a close personal and professional relationship with Sutherland. Halligan attributes Fine Gael’s success at this period to a particular skill: ‘There was a culture in Fine Gael of being extremely good at drafting, a combination of politics and law and sometimes economics. It was part of the organisational culture of Fine Gael that goes back to the foundation of the state. They did after all draft the first constitution.’

He continues: ‘The best drafter in the English language I have ever come across was Jim Dooge.’ Widely considered a polymath, Dooge served as Minister for Foreign Affairs in 1981; he was also an engineer, a climatologist and an academic. Halligan and Dooge had written Fine Gael and Labour’s joint 1973 manifesto together. ‘Then there was Alexis FitzGerald, whom I wrote the 1977 election manifesto with, and also Declan Costello. On top of that Garret FitzGerald was also very talented. Peter [Sutherland] was part of that culture,’ Halligan says.

It was a training that would serve Sutherland well in later years. His ability to draft a contract in a very short period of time saved the Uruguay Round of trade talks from collapsing at the eleventh hour.

Any time a new government is formed there is always intense speculation about the identity of the new cabinet, and 1981 was no exception. According to one senior legal source who was in the Law Library at the time, the expectation in legal circles was that Nial Fennelly would be appointed attorney general. A former Law Library colleague of Sutherland’s has said that ‘Fennelly’s reputation as a lawyer was superb and he went on to be advocate general in the Courts of Justice in Luxembourg and a Supreme Court judge, and an excellent Supreme Court judge at that. He was a top-class lawyer, one of Ireland’s best lawyers in the last forty years. So there probably was a little bit of surprise that – well, certainly the feeling was that Peter came on the outside and overtook Nial on the line.’

On 26 June 1981, Garret FitzGerald appointed Sutherland attorney general. Still only thirty-five, Sutherland was by far the youngest man to occupy the role in the history of the state, a record that still stands. At the time he was also the highest-earning barrister in the Law Library. ‘I suppose his name would have been in the ring but Peter wouldn’t have had a reputation for being a lawyer. His reputation was as an advocate. I suppose at that time the feeling was that somebody who had a very strong legal reputation would be the one who might go in as AG. Of course Peter was charming. He was excellent at tactics, he was a good advocate, he knew how to win, he knew how to campaign for something and therefore he obviously conducted a campaign for himself to become the attorney general, and he was successful,’ the same former Law Library colleague stated. But Sutherland mounted a very effective campaign. ‘He would have gone to every Fine Gael Árd Fheis [party conference]. He was deeply involved with the party in terms of putting policy together. He did the hard yards. Fennelly did not, and ultimately that was the difference between them.’

Fennelly declines to comment on whether he was linked to the post. But he says: ‘Don’t forget there is an unavoidable political element to the role. Peter was a good lawyer with good instincts. He wasn’t noted for his academic approach to the law. He wasn’t noted as a writer of learned articles. But the AG is the legal adviser to the government, and is equipped with an office staffed with experts. It wasn’t a surprise at the Bar. He was noted for being active in Fine Gael. Peter had huge political clout and had a huge self-confidence about him.’

According to Mark FitzGerald, his father was conscious of the fact that he had been elected Taoiseach for the first time at the age of fifty-five. And that is why he made a conscious decision to appoint as many young TDs to the cabinet as possible. Alan Dukes, Michael Noonan and John Bruton, who were all in their thirties, were given cabinet positions. It was in that spirit that he picked Sutherland, says FitzGerald, adding that his father was also conscious about promoting women into senior positions, but that in 1981 there was a dearth of suitable candidates. Eleven female TDs were elected to the 166-person chamber that year, and there was just one female TD in the cabinet: Eileen Desmond, the Labour Party Minister for Health.

‘Was Peter then natural choice as attorney general? Well, I think he was young to be attorney general and I don’t think it was necessarily an absolute given, but I think that the work Peter did with my father was very important. They quickly got themselves on a wavelength. My father was full of policy ideas and Peter was a pragmatist who could see how they could be executed, and the fact that they did that work on the manifesto showed the depth of his brain,’ says Mark.

It was certainly a bold move on his father’s part. According to Alan Dukes, the role would have been agreed between FitzGerald and Dick Spring, the Tánaiste (deputy prime minister) and leader of the Labour Party. ‘There was never any tension in government about Peter’s political background. The protocol with the AG is that he or she attends all cabinet meetings but speaks only when spoken to. It was obvious Peter had things to say outside the strict remit of the AG. He always managed a way of being requested to speak.’

Towards the end of the summer of 1981, when Sutherland was invited to speak to the Irish American Lawyers Association at a meeting in Dublin, he used the opportunity to address the issue of the need for constitutional change. He set out a clear manifesto calling for a thorough review of the constitution and for a programme of social and institutional change that would reflect and implement what was becoming, for some, the uncomfortable reality of plurality. A constitution ‘is made for people of fundamentally differing views’, according to Sutherland.

Pluralism, he said, was the essence of the Republican ideal; the state had an obligation to protect the rights of individuals in the context of diversity of belief and take cognisance of the rights and the sensibilities of non-nationalists in the North. The following is an edited extract of that speech:

Promote pluralism, reconciliation and peace; our constitution had provided stability and coherence to civic society and it had allowed it to flourish and to function.

But a constitution should not give cause for alienation; rather it should assist in the process of reconciliation. For fifty years, the Irish constitution had served us well, it had provided stability and coherence, based on the rule of law, but in the process it had, understandably, acquired an aura of immutability.

But it is vital that we did not permit our reverence for that authority to blind us to some of the inadequacies or shortcomings that were now becoming apparent as society developed and changed. Debate and an openness to change are positive for a democratic republic. The mystique and excessive reverence accorded an iconic text, such as a constitution, can only serve to damage its long-term sustainability and its integrity.

Informed and healthy debate ensures that the constitution remains a living, vital expression of the rights and liberties of each individual in the specific context of the complexity of their relationship with society. Debate protects the citizen just as it preserves the authority of the constitution.[1]

The speech generated significant publicity. In response, the Fine Gael–Labour coalition set up a constitutional review commission and a working group comprised of leading academic experts, together with a number of legal practitioners. The group met on a number of occasions. Having established its terms of reference and a work plan, it produced a series of detailed working papers in which consideration was given to areas of particular complexity such as citizen rights, the right of referral and review and the jurisdictional extent of the courts.

This presaged a decade of social, political and constitutional upheaval.

Public Office

5

THE EIGHTH AMENDMENT TIME BOMB

SUTHERLAND’S CAREER CONSISTED OF TWO PARTS: the public servant and the businessman. His first public sector role, as attorney general in the 1981 Fine Gael–Labour Party coalition, was hardly the most auspicious beginning. The government lasted only 279 days. Against a highly unfavourable economic backdrop, it was a particularly turbulent time in Irish politics. The national debt was climbing to unsustainable levels. The unemployment rate was 15 per cent and rising. The lack of a coherent industrial strategy and short-sighted protectionist policies ensured that levels of economic activity remained anaemic at best. Hunger strikes among Republican prisoners in the Maze prison in Northern Ireland brought worldwide attention to the Troubles, and made the prospect of peace even more remote. IRA murders and loyalist reprisals became a depressing staple of the daily news cycle.

The minority coalition collapsed on 27 January 1982 when it failed to get its budget through the Oireachtas. John Bruton, then Minister for Finance, had attempted to put VAT on children’s shoes; it was a move that alienated the independent TDs propping up the administration. Another election in March returned Fianna Fáil to power.

Then, in the summer of 1982, a series of shocking and random murders convulsed the country when Malcolm MacArthur killed a nurse, Bridie Gargan, in Phoenix Park and a few days later took the life of Thomas Dunne, a farmer from County Offaly. MacArthur went on the run. In an effort to evade capture, he went to the house of an old acquaintance, Patrick Connolly, then attorney general. The two men attended a match in Croke Park, the headquarters of the Gaelic Athletic Association (GAA), and discussed the murder with Garda commissioner Paddy McLoughlin.

MacArthur was arrested at Connolly’s Dalkey home in August 1982. The attorney general immediately resigned and a very colourful description of events was given by the then Taoiseach Charlie Haughey. The episode seeped into popular culture through the acronym GUBU – grotesque, unbelievable, bizarre, unprecedented. (It was Sutherland’s former master, Harry Hill, who successfully prosecuted MacArthur for Gargan’s murder.) Later that year, the Fianna Fáil government itself fell over proposed budget cuts needed to stabilise the country’s fiscal position. An election was held in November 1982, and as a result Fine Gael and Labour formed another government.

Sutherland now began his second and much more eventful stint as attorney general alongside Michael Noonan, the newly installed justice minister. The two men would develop a close working relationship and a lifelong friendship; their earliest encounter, however, was the phone-tapping scandal. According to newspaper reports in December 1982, earlier that year the Fianna Fáil administration had ordered that the phones of two prominent political journalists – Geraldine Kennedy from the Irish Press and Bruce Arnold from the Irish Independent – should be tapped in an effort to detect the source of cabinet leaks. The phone tapping had been instigated by Sean Doherty, a Fianna Fáil TD for Roscommon and justice minister in 1982. At the time, the state could only sanction the phone tapping of persons suspected of subversive activity. Even though the work of Kennedy and Arnold had greatly upset the government of the day, under no circumstances could it be deemed a threat to the security of the state.

When the story broke it caused a political crisis that quickly embroiled the two most senior members of An Garda Síochána, the Irish police. As Michael Noonan explains: ‘I had to have conversations with Garda commissioner Paddy McLoughlin and deputy commissioner Joe Ainsworth. I was relying on Peter [Sutherland] for legal advice on what was appropriate and not appropriate to say. It was very good advice.’

In 1978, Gerry Collins, Fianna Fáil justice minister at the time, had dismissed Garda commissioner Ned Garvey when it emerged that Garvey had placed Eamonn Barnes, the director of public prosecutions, under surveillance. When Garvey initiated proceedings against the state on the basis that it had abrogated his constitutional rights, the case went all the way to the Supreme Court, with Garvey emerging victorious. ‘The essence of the advice he gave me,’ continued Noonan, ‘was that when Gerry Collins was justice minister and the government dismissed Ned Garvey, Garvey won his case in the Supreme Court on the grounds of inappropriate procedure. He went through Supreme Court judgment so that I didn’t make any legal errors in conversations with McLoughlin and Ainsworth.’ Sutherland’s advice to Noonan on how to deal with McLoughlin and Ainsworth was sound because he had represented Garvey. He knew what, and more importantly, what not to do in such circumstances. As a result, both McLoughlin and Ainsworth retired from the force.

*

The phone-tapping scandal was only a minor skirmish, however, compared with what was to come next. In the early 1980s, the Catholic right was uniting under a banner of implacable opposition to abortion. The broad aim of the two main groups, the Society for the Protection of Unborn Children (SPUC) and the Pro-Life Amendment Campaign (PLAC), was to insert an amendment into the constitution that would prohibit abortion in Ireland in all circumstances. Moreover, they wanted to ensure that no Irish woman could travel abroad for an abortion – and that meant removing access to information about abortion services in other jurisdictions. In many ways Ireland was starting to resemble a theocracy more than a fully functioning democracy. There were very few developed countries at that time where the forces of the church and religious groupings could shape society to such an extent through state legislation.

The Catholic right had such heft that politicians ran scared rather than confront them. Dr Julia Vaughan was the leading figure in the Pro-Life Amendment Campaign, while some PLAC members were very senior lawyers in the Four Courts. The religious right took the view that it was necessary to place in the constitution an amendment that would do two things.

First, they wanted to rule out any possibility that the constitution would be used in the future as a vehicle to identify an unremunerated right to abortion by an interpretation of the rights to privacy – in other words, the kind of thing that had happened in the Roe v. Wade case in the United States. Second, there was also an even more radical group who believed that there should be a positive expression of the right to life in the constitution. In that period there were three elections, so any powerful advocacy or lobby group would obviously get a keen hearing from the political leadership of both parties. As a result, both Fianna Fáil and Fine Gael gave commitments to include wording in the constitution that would have the desired effect for the pro-life groups.

The religious right occupied key positions across the state and in Irish society. The number two civil servant in the attorney general’s office when Sutherland took over, a colourful figure called Matt Russell, was closely associated with PLAC. Even by the conservative standards of the time, he occupied the outer fringes of the right wing. A prominent member of Opus Dei, Russell was also instrumental in the collapse of the Fianna Fáil–Labour coalition in 1994 when it emerged in November of that year that he had not processed nine warrants for arrest of paedophile priest Fr Brendan Smyth.

PLAC had lobbied all parties before the 1981 general election to insert an amendment in the constitution that would make Ireland’s abortion laws ironclad. Garret FitzGerald, as leader of Fine Gael, made such a commitment but failed to follow through in the short-lived government. When Charlie Haughey was in government in 1982, PLAC had again come up with the wording it wanted inserted into the constitution. Haughey promised that he would hold a referendum to honour his commitment to PLAC. The pledge followed Haughey on the campaign trail when the government collapsed in November of that year, but put Garret FitzGerald in an invidious position. If Fine Gael failed to match Haughey’s commitment then it risked incurring the wrath of – and electoral rejection by – social conservatives. They had mobilised in such large numbers that they could potentially sway the outcome of the election.

FitzGerald opted to take a conservative approach and matched Haughey’s pledge. According to Mark FitzGerald, his father made the judgement that if he hadn’t given such a commitment he wouldn’t have won the election. ‘If he hadn’t won the election, I don’t think personally it would have bothered him if he hadn’t become Taoiseach. But he was very interested in solving the problems in Northern Ireland. He made the gamble on the Eighth Amendment even though his heart wasn’t in it, because he knew that if he didn’t then between the Church and Haughey they would wipe the floor. Well, they nearly did, it was a very close election.’

Alan Dukes, finance minister in the Fine Gael–Labour government formed in December 1982, recalls a meeting held while the party was still in opposition. He and a few like-minded party members, he says, had taken to referring to the Society for the Protection of Unborn Children, after the abbreviation of their name, as ‘Spuccers’. ‘The Spuccers were invited to make a presentation to the Fine Gael parliamentary party in October 1982. I remember it well. It was a bright sunny morning. The Spuccers came in and made the presentation, which I found very unusual. They then said they would like the views of every Fine Gael member present, which they would faithfully report back to their constituents. I remember having to make a conscientious effort not to tell them that it was okay, I would tell my constituents myself. But anyway, I didn’t. Then we had the election in November ’82. Then we were in government and Peter [Sutherland] was faced with the task of steering this through.’

Somewhat unusually, Michael Noonan became the sponsoring minister to steer through the Eighth Amendment in 1983. It should have been the responsibility of the health minister; in 2018, Simon Harris, Minister for Health, would be given responsibility for managing the referendum that removed the Eighth Amendment, and it was assumed that in 1983, Barry Desmond, the Labour Party health minister, would take charge of the proposed legislation. But Desmond vehemently opposed the proposal and refused to have anything to do with it. That is why Noonan was asked to take charge. ‘So it was transferred to me, the file was transferred from health to justice. There was nothing in the file except the words,’ Noonan recalls.