THE GLOBALIST
PETER SUTHERLAND – HIS LIFE AND LEGACY

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William Collins

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This eBook first published in Great Britain by William Collins in 2019

Copyright © John Walsh 2019

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Source ISBN: 9780008352127

Ebook Edition © October 2019 ISBN: 9780008327620

Version: 2020-08-28

Dedication

For my wife Mary, my sons Hugh and Dominic,

and my parents, Tom and Maura.

Contents

Cover

Title Page

Copyright

Dedication

Prologue

EARLY YEARS

1. Gonzaga and childhood in Monkstown

2. Student days at UCD

3. The Arms Trial

4. Fine Gael

PUBLIC OFFICE

5. The Eighth Amendment time bomb

6. The Troubles: negotiating the Anglo-Irish Agreement

7. Getting Competition: becoming a European Commissioner

8. Shaping EU competition policy

9. President of the European Commission?

10. Brokering the Uruguay Round and setting up the WTO

11. Globalisation and its discontents

CORPORATE CAREER

12. Allied Irish Bank: the DIRT scandal

13. Flying high – then crashing – with GPA

14. Goldman Sachs

15. Clipping Goodwin’s wings at RBS

16. The longest serving chairman

A SENSE OF DUTY

17. Migration: UN Special Representative

18. The biggest crisis of our time

19. A turbulent relationship with Ireland

20. Brexit: a nightmare unfolds

21. Faith and philanthropy

22. Family

23. Legacy

Picture Section

List of Illustrations

Appendices

Footnotes

Endnotes

References

Index

Acknowledgements

About the Author

About the Publisher

PROLOGUE

ON THE MORNING OF 11 SEPTEMBER 2016, A seventy-year-old Irishman suffered a heart attack and collapsed on a footpath in London. He had been walking to mass, as he had done every Sunday throughout his life.

A number of people rushed to his aid. He was carrying no identification. During the nine minutes it took the ambulance to arrive, those who attended to the stricken man could scarcely have realised who lay before them.

It was Peter Sutherland. ‘The father of globalisation’ and ‘God’s Banker’ are among the soubriquets he had collected during his career. He was possibly the most influential Irish person ever and a key figure in world history over the past few decades.

In many ways, he was the personification of the changing relationship between Ireland and Britain. As a European commissioner for competition he had taken on the British government and prevailed. He would later become chairman of BP, one of the UK’s largest companies.

He operated at the heart of the British establishment, yet he remained an outsider. He was a fiercely proud Irishman. And even though his influence spanned continents, he never strayed too far from his roots.

Early Years

1
GONZAGA AND CHILDHOOD IN MONKSTOWN

PETER DENIS SUTHERLAND WAS BORN INTO A prosperous family in Dublin on 25 April 1946. His parents, Billy and Barbara, lived on The Hill in Monkstown, a middle-class village in south Dublin. Ireland had remained neutral during the Second World War, but memories of two painful conflicts that marked the birth of the Irish state over twenty years before were still an open sore; the country was economically underdeveloped and would remain so for another five decades. But Dublin retained characteristics of its former imperial past. There was the city’s grandeur, its private schools and private clubs. This was the Dublin into which Sutherland was born, and which would mould his formative years.

Peter had two sisters, Karen and Gill, and a younger brother, David, who predeceased him in 2006. But it was his father who was a strong and enduring influence on his life. Billy Sutherland – along with the father of Peter Mathews, the late Fine Gael TD (Teachta Dála, a member of the Dáil) – was a partner in the insurance firm Mathews, Mulcahy and Sutherland.

William Sutherland and his two sons, William Jr (Peter’s great-grandfather) and George, arrived in Ireland from Wick in Scotland around 1850. They were coopers by trade. William Jr, a Scottish Presbyterian, married Sarah Cooke, a Roman Catholic in Dublin in 1857. Five years later the couple moved to Cork, and George followed his brother to the city, where the two of them opened their own businesses. Records from 1870 show that George was a fish merchant at The Coal Quay, while William is listed as a publican at 27 Cook Street. By 1880 – when William and Sarah had eleven children – William and George are both listed as fish merchants with substantial commercial and residential property in Lavitts Quay.

Between 1880 and 1887, William moved to Newcastle in England on his own. He returned to Sarah shortly before his death, whereupon he converted to Catholicism. Sutherland’s grandfather, also called Peter, was born in 1862. He moved to Dublin and became the Treasurer of Dublin City Council, marrying Mary Fitzpatrick in 1906. Sutherland’s father, William George Anthony, was born in 1914.

Sutherland was educated at Gonzaga College, a Jesuit school in the affluent Dublin neighbourhood of Ranelagh. Even though Gonzaga had only opened its doors in 1950 – four years before Sutherland started – it had already established itself as the school of choice for Ireland’s upper middle classes. It would soon eclipse the handful of other private schools in Dublin.

A former colleague of Sutherland’s at the Law Library who attended Blackrock College described Gonzaga as ‘Dublin 4 elitist … It had a “We will educate the next leaders of the state” mentality. Blackrock might have had pretensions but the Holy Ghost fathers were basically fellas building churches in Nigeria. There would have been a lot of boarders, farmers and merchants’ sons in Blackrock – the sort of boy you wouldn’t get at Gonzaga.’

Gonzaga profoundly shaped Sutherland. Colm Barrington – the son of Tom Barrington, the first director of the Institute of Public Affairs, and nephew of Donal Barrington, the former Supreme Court judge – was a contemporary of Sutherland’s at Gonzaga. They subsequently became good friends. According to Barrington the Gonzaga boys had no idea how cloistered their existence was, ‘because we didn’t know any different. The Jesuits would make you feel that you were special rather than privileged and that Gonzaga was special and that you would go on to do special things.’ Barrington said his father was at a parent-teacher meeting at which Garret FitzGerald, the former Taoiseach, asked Fr Hughes, the rector, if the school should put more emphasis on the sciences. Fr Hughes wryly responded that at Gonzaga ‘we teach our boys to be the leaders of scientists’. Gonzaga instilled in Sutherland a lifelong passion for learning, although according to his friends and former teachers, the acquisition of knowledge was not one of his main priorities for most of his time at the school.

Tony Spollen met Sutherland on his first day at Gonzaga in 1954, and the pair remained lifelong friends, although their paths would cross in much more controversial circumstances in the 1990s. ‘We became really good pals. I used to spend six weeks in the summer in his house in Monkstown. The Sutherlands would have been very wealthy – so from an early age, he would have been used to privilege. The family had a housekeeper called Polly. His mother was an extremely nice woman, Barbara. He was always used to having the best.’

Sutherland’s typical summer would have revolved around Monkstown tennis club. He was a good, competitive tennis player. Another early childhood friend was John Arrigo, a neighbour in Monkstown. They too would remain lifelong friends. Sutherland had many passions in life, but in his early years nothing could compete with rugby. ‘Myself and Peter became very good friends as we were both very keen on rugby. We were second row together initially and we then moved to front row with John Sisk in the middle,’ says Colm Barrington. Underlining the rarefied social strata of Gonzaga, John Sisk was a member of the Sisk family, the founders of one of Ireland’s largest construction groups.

Tony Spollen says that one of his earliest jobs was to get Sutherland elected captain of the Gonzaga rugby team, which involved extensive lobbying of the other players. Sutherland once secured a trial for the Leinster schools rugby team. Impatience got the better of him and he ordered Spollen to ring the sports desk of the Irish Times newspaper to check if he had made the team. He hadn’t. ‘He was never heavily into the academics. He did his homework, but just about. His two main interests were debating, he was a terrific speaker, and rugby,’ says Spollen.

However, Gonzaga was not a good rugby school and it often had trouble putting fifteen players on the pitch. Adds Barrington: ‘From a rugby point of view we got beaten a lot. We weren’t allowed to play against any Protestant schools, who in rugby terms would have been more our size and smaller. Fr O’Connor wouldn’t allow us to play against Protestant schools because of the Archbishop McQuaid philosophy at the time.’ Fr O’Connor was the rector, while John Charles McQuaid, the Catholic archbishop of Dublin between 1940 and 1972, ensured that the church kept a vice-like grip on the state – in other words, Gonzaga were banned from playing against teams from Protestant schools. It was something of a miracle that on 5 March 2019, Gonzaga won the Leinster senior cup semi-final for the first time in the school’s history by beating Clongowes Wood College 22–19. What’s more, loose head prop Henry Godson, who scored three tries, is the son of Rory Godson, a close friend of Sutherland’s.

Sutherland developed a lifelong relationship with Gonzaga. Indeed, the school’s library is named in his honour, in recognition of one of the many generous donations he made over the years. Sutherland’s ability to maintain lifelong relationships was one of his more striking characteristics. At his funeral mass on 11 January 2018, the church was filled with former friends from school, university and all the different strands of his storied career. Garrett Sheehan, a member of Sutherland’s class who would also pursue a career in law, eventually becoming a High Court judge, gave the eulogy at Sutherland’s funeral. ‘Peter was great fun at school. He had a mischievous side but he was a natural leader. He was one of the only people to play [rugby] for the seniors and juniors in the same year. He was very good at keeping in touch with people. For example, no matter where he was or how busy he was he would always come back for UCD rugby dinner.’

Fr Noel Barber, the principal celebrant at Sutherland’s funeral mass, took up a position at Gonzaga in 1961. Although he never taught Sutherland, the two of them subsequently struck up a friendship that again would endure over the subsequent decades, and Barber was one of the last people to see Sutherland before he passed away. ‘I went to Gongaza when Peter was in fourth year. I trained a rugby team in sixth year when Peter was captain. As a young boy, he was chubby. Academically he wasn’t stellar, he was a late developer. There were some brilliant fellows in his class but he wouldn’t have been in that category in school. The most brilliant fellow in his class was Leslie Webb, who died in a drowning accident in India during VSO [Voluntary Service Overseas] straight after school. Peter was not in his category yet, but he always had a spark that showed up in debating society with Fr Veale.’

Fr Barber recounted a story from Sutherland’s time at Gonzaga. ‘A teacher overheard Peter and a pal discussing the strength and weaknesses of the priests whose masses they served. Peter with certainty said, “I like to serve Fr White.”’(Fr White was the prefect of studies.) ‘His companion retorted – it was in the days of corporal punishment – “But he biffs us.” Peter countered pragmatically, “What are you talking about? He has to do it. That is his job and he does a good job.”’

According to Barber, the same Fr White spotted something in Peter which eluded others at that stage. When a teacher remarked to him that young Sutherland was not doing so well, Fr White responded with uncharacteristic sharpness that when young Sutherland saw something he wanted he would go for it and get it. ‘I overheard that conversation and I watched with pleasure how over the years the prophecy of the shrewd Fr White was fulfilled.’

All who knew him at Gonzaga say that it was Fr Joe Veale who left an indelible mark on Sutherland. ‘Joe was absolutely inspirational. He taught us how to write. He established the debating society at Gonzaga. Peter was an outstanding debater from a young age. He made an immediate impact when he joined in fourth class,’ says Sheehan. The debating society would become another passion in Sutherland’s life and lead him to his career in law. Barrington remembers that Fr Veale was always ahead of his time in terms of openness. ‘He encouraged us to read The Catcher in the Rye when everybody else was saying it should be banned.’ Sheehan agrees that Fr Veale made a huge impression on Peter. ‘Fr Joe was absolutely passionate about the Vatican council. I wasn’t surprised to hear Peter did what he did with the Vatican because of Joe.’ In 2011 Sutherland would become an adviser to the Vatican on its financial affairs. Sutherland is estimated to have made £120 million from Goldman Sachs’ flotation in 1999. According to Sheehan, one of the first things he did with the proceeds was to buy Fr Veale an around-the-world travel ticket.

According to his former classmates, even when young Sutherland did not lack confidence and could add a self-serving gloss to events that were not necessarily merited by the facts. Sheehan recalls one particular week in sixth year when Fr Veale was handing back the boys’ weekly essays after they had been marked. Sutherland had written his essay on Ernest Hemingway, the US novelist, who had died three years previously. ‘Joe’s comment was that there was too much hairy-chested sentimentality, which was meant as a criticism. But Peter took it as a compliment and proudly sent it around the class to show what a great writer he was.’

Fr Veale died in 2002. Described by friends and former students as a highly intelligent and complex man, he shaped Sutherland during his formative years probably more than anyone else apart from his parents. An appreciation which appeared in the Irish Times shortly after Fr Veale’s death referenced an article he had written two years before, in which he addressed in very raw terms the life of a cleric. He described the ‘private pain … loneliness … isolation … the desert in the heart … self-hatred … rage … having no say in the disposition of one’s own life … the longing for human contact … the ache for tenderness and gentleness.’[1] According to the newspaper, it was an ‘outpouring of anger at the authoritarian, narrow-minded and philistine culture of the Church’s leadership, both in Ireland and worldwide, and a cry too against the smug smile from the layman’s armchair’.[2] He wanted people to ask why the scandals of clerical child-abuse had happened. What was the desolation that might explain, but not excuse, the depravity? This extraordinary article (in Doctrine and Life) appeared and disappeared with hardly a comment. His act of courage, the last act of his career, his ‘J’Accuse’, had been countered in an Irish way – by silence.

Bobby McDonagh was a former student at Gonzaga, although he entered the school eight years after Sutherland. He would become one of Ireland’s most distinguished diplomats, and as Irish ambassador to the UK had close contact with Sutherland. They often discussed Fr Veale. McDonagh wrote an appreciation following Veale’s death which appeared in the Sunday Independent newspaper on 4 November 2002:

I remember Joe once saying that he believed in Christ rather than in Christianity. In making this distinction (‘don’t make a dichotomy out of a distinction’ I still hear him saying), he was, of course, distinguishing the essence of faith from what is secondary. He promoted, with his formidable intellect and indeed the commitment of his life, the essentials of his faith. But beyond that his commitment to seeking the truth in all its paradox and complexity obliged him to have an open mind. He long recognised, for example, the central importance of women, especially mothers, in the church, as necessary leaders of opinion rather than as flower arrangers. He saw that the church urgently needs the involvement of the laity, as players rather than as cheer leaders. Tolerance of difference was at the heart of his belief.[3]

Fr Barber recalled that Sutherland hadn’t stood out as having a deeper faith than any other boy in Gonzaga at the time. ‘That became evident in later life. His last act was going to mass. His faith became evident in other ways, for example with migrants, and being involved with the Vatican.’ According to Barrington, many of the nostrums that shaped Sutherland’s life and career came from Gonzaga and the Jesuits. ‘He was a liberal. He thought that by being liberal you helped people be better off and have a better life. That would have been a Gonzaga principle. Here were the Jesuits in a very rigid church and they were much more liberal than the rest of the church and that came through in Gonzaga people.’ Friends say even though religion was very important to Sutherland throughout his life, he practised his faith privately and did not force his views on anybody else. His views were much more nuanced and progressive than he was sometimes given credit for.

In those days, boys attending Gonzaga did not have to gain the Leaving Certificate. Instead they took a matriculation exam and a sixth year, a pre-university year, on which great value was placed.[fn1] Matriculation was a separate set of exams used as a means to gain entrance to university, and was scrapped only in 1992, after eighty-two years. The idea of not taking the Leaving Certificate was to assert that what mattered was learning, not passing exams. Such an ethos was very strong when Sutherland was at the school, and it played a large part in shaping him in later life. According to Fr Barber it wasn’t just about attainment, it was about ideals and values. Although Sutherland’s matriculation was mediocre, ‘I think he realised that even though he mightn’t have worked very hard, an intellectual light was sparked. I think that really impressed him and he was always very generous to the school. He attributed what he got here to the Jesuits. They were very formative years for him, much more so than we thought at the time.’

In Barrington’s view, the most important quality Sutherland took from Gonzaga was self-confidence: ‘Gonzaga taught you to be self-confident. In my class everybody went to college. It was expected. You weren’t going to join an insurance firm or anything like that. At Gonzaga you did feel special and when you went to college you did feel prepared for this.’

2
STUDENT DAYS AT UCD

SUTHERLAND WENT TO UNIVERSITY COLLEGE Dublin in 1964 to study law. But then again, he was hardly faced with an array of choices. Trinity College Dublin, academically superior at the time and with more of an international reputation, was out of bounds for young ambitious Catholics. Archbishop John Charles McQuaid, who had prevented Sutherland from playing rugby against Protestants, had also made an order that young Catholics were barred from entering Trinity, which had a Protestant ethos.

By that stage, Sutherland knew he wanted to become a lawyer, and that left him with one choice. In the 1960s, UCD was located in Earlsfort Terrace, now the site of the National Concert Hall, just off Stephen’s Green in the centre of Dublin. At Gonzaga, Sutherland had been able to seamlessly mix his two passions, debating and rugby; but at university, some tough choices had to be made.

The Literary & Historical Society (L&H) had been founded in 1854 by Cardinal John Henry Newman. To become auditor of the L&H was seen as a rite of passage for any young person who had intentions of shaping Irish society, or at the very least becoming rich and famous. Patrick (Paddy) Cosgrave was auditor of the L&H when Sutherland arrived on the campus in 1964. Cosgrave was something of an anomaly. UCD, along with wider Irish society, was becoming more comfortable with its nationalist past. Like their counterparts throughout Europe, Irish students were on the march leftwards.

Cosgrave was very much to the right and revelled in the label ‘west Brit’, a pejorative term used to describe anybody still well disposed to Ireland’s former colonial masters. He used to boast that his grandfather, a warden in Kilmainham Jail, had beaten up a young Kevin Barry, a Republican martyr. Following UCD, Cosgrave moved to London, where he plied his trade as a journalist before catching the eye of Margaret Thatcher. He went on to become a special adviser to the former British prime minister, although she cut ties with him when his drinking got out of control. He died in 2001 aged sixty.

Sutherland had shown no overt political leanings at that stage. Friends say he had no appearance of struggling for too long, if at all, with the choice of spending Saturday nights in the company of Cosgrave et al. in the L&H or the ‘hop’ at the Lansdowne rugby club. Neither was he active in politics at UCD, where many prominent members of Fine Gael – such as John Bruton, who was a few years behind Sutherland at college – were taking their first tentative steps towards elected office.

In those days, students took their degrees and Bar exams at the same time. Sutherland was awarded a law degree in 1967 and passed his Bar exams a year later.

In Sutherland’s last year at UCD, Vincent Browne became the chairman of Young Fine Gael. Browne would later become a prominent journalist and harsh critic of the party. Rugby remained an all-consuming passion for Sutherland at UCD, yet he still found time to increase his circle of friends. Garrett Sheehan, Colm Barrington and other Gonzaga boys had made the same journey from Ranelagh to Earlsfort Terrace, although Barrington, being a year older and in the economics department, spent little time with Sutherland at UCD. Barrington was not a fan of his university experience. ‘UCD felt very old fashioned. Having come from Gonzaga it felt in some ways silly. Girls were not allowed to wear trousers into the library. The pomposity of some of the lecturers was unbearable.’

Sutherland appeared to develop no strong feelings about his time at Earlsfort Terrace. Nicholas Kearns, who also studied law with Sutherland – they both started at the Bar on the same day – would go on to become a Supreme Court judge and president of the High Court. He and Sutherland met the summer before they started at UCD. ‘I first met him when thirty-five lads went to Huntingdon in the UK for a summer to work for Batchelors Peas. Peter quickly emerged as the natural leader of the Irish group that was there. It was eight weeks of night shifts, eight at night to eight in the morning. We were all Irish guys from different backgrounds. If there were any workplace difficulties, Suds [Sutherland] sorted them out. He was big and strong in those days. He had a natural strength and energy. If he wanted something he got it.’ ‘Suds’ was a nickname that would remain with Sutherland for the rest of his life.

Sutherland also studied economics and philosophy in his first year. Garret FitzGerald lectured him in economics, while Desmond Connell, the future archbishop of Dublin, taught him philosophy; according to Sutherland’s eldest son Shane, the experience put his father off philosophy for twenty years. John Blayney, then a barrister and a future High Court judge, taught Sutherland constitutional law.

Declan McCourt, who met Sutherland at UCD, studied law and politics before taking his Bar exams. He enjoyed the experience. ‘I found it very fulfilling. It was the Lemass era. Everything was opening up. It was great. We were in the centre of town. We made friends for life. There were plenty of colourful characters.’ Sean Lemass had taken over as Fianna Fáil leader and Taoiseach from Eamon de Valera and immediately set about liberalising the economy.

The friendship between Garrett Sheehan and Sutherland developed further at UCD. ‘He certainly didn’t develop a passion for law in UCD. We were lucky if the lecturers turned up and we didn’t mind if sometimes they didn’t. He actually did really well in his final year of law. When he went to the Bar and started practising that is when he absolutely loved it. UCD was great fun. Our social life revolved around the rugby club. The L&H would have been an obvious path, but I think we were so determined to play for UCD.’

Sheehan explains that, contrary to the image of rugby players ‘just being interested in drinking and talking about women, we actually had a lot of good discussions about politics and so on’. Sutherland’s social life revolved around Hartigans and O’Dwyers on Leeson Street and The Pembroke on Pembroke Street Lower. There were also dances, or what were known as ‘hops’. The Belvedere hop was very popular at the time. It was there that, in 1969, Sutherland met a young Spanish au pair, Maruja Cabria Valcarcel. They would marry two years later.

But Sutherland’s time in UCD was mostly taken up with rugby. He played in the Freshman team which won the thirds league and then for the second team, which won the league and cup double in the Leinster league in 1967. Their ultimate aim, says Sheehan, was to be selected for the Leinster team, for which they both had trials. ‘Peter was never far off making it.’ John O’Hagan, who is now Professor of Economics at Trinity College Dublin, was captain that year, while Sutherland took over the captaincy of the senior team for the 1967–8 academic year. O’Hagan says that the first time the team got together, Sutherland gave an ‘amazing speech. That team had been very successful the previous year. He managed expectations very well. He is the finest speaker of his generation.’

The first game of the year was the annual ‘Colours’ match against Trinity. Press clippings from the time described it as a classic. According to Sean Diffley in the Irish Press on 30 November 1967:

Beyond any doubt the 16th Annual Colours match finds an honourable place among the classic games of rugby. It had everything – drama, excitement, fantastic pace, a high degree of skill and artistry, heroic personal endeavour and, at the end, an element of pathos. On a dull, chilly afternoon, the two student teams revived the glory of rugby. There were no losers really. [For the first UCD try] Grace ran from inside his own half and then launched a huge kick that appeared to be far too much ahead. But the long-striding UCD player managed, remarkably, to field the kick and, despite the presence of several defenders, his momentum and sheer strength carried him to within sighting of the line, and a spectacular dive did the rest.

Meanwhile, according to Paul MacWeeney at the Irish Times:

Had there been All Blacks among the spectators they would have acclaimed UCD’s second try as one of their own most precious vintage – no better combined movement is likely to be seen at Lansdowne Road, or elsewhere in Ireland for that matter, this season … From a scrum well inside the UCD half, Cooke served Murphy who sent inside to Bresnihan coming up on the burst. The forwards supported on each side of the man in possession, and at top speed, Deering, Gill, Sutherland and J. O’Hagan flicked passes in and out before Deering burst over near the posts.

Despite the best efforts of UCD, however, Trinity won the game.

In January the focus shifted to the Leinster Senior Cup. Unable to compete in height or weight with the other teams, the UCD students devised a two-man lineout.[fn1] This is how the legendary Con Houlihan described it in a piece for the Irish Press newspaper titled ‘Ingenuity the key’:

The students devised a scheme among themselves to beat Wanderers, then the top scoring side in the country and coached by Ireland’s coach. But coaches, or at least most of them, follow the textbook … But they seem to forget ingenuity. And it was ingenuity which on Saturday made Wanderers wonder what had happened to them. Now as far as I know there’s no rule asking that the two opposing forwards should stand shoulder to shoulder in the line. True, we have had four on each side peeling off, but UCD on their throw-in pulled out six forwards, leaving a couple in the line-out from each side … It was ingenuity, not organised by a coach, but by young-minded chaps.

It had the desired effect. UCD upset the odds to beat a number of more established teams on the way to the Leinster Cup final. The following piece appeared in the Irish Press on 17 April 1968, just a few days before the final, which was against Old Belvedere:

UCD will probably start favourites, and deservedly so, because they were most impressive when ousting Terenure 16–8, Wanderers 11–3 and Old Wesley 11–6, en route to the final. Against Old Wesley, in particular, they gave a magnificent exhibition of fast, intelligent, open rugby. The UCD team is one of the youngest to represent the College in memory – the average age being just under 21. What they may lack in experience they make up with exceptional fitness and attacking ability. A measure of this ability is indicated by the fact that they have scored 82 tries this season, an average of more than 3.5 per match. Another interesting feature of the line-up is that six of the team are studying law whereas the medical faculty has only two representatives this year.

Alas, it was not to be. Old Belvedere beat the students with a last-minute try in what was described as a thrilling final. O’Hagan says that Tom Grace, a member of the UCD team, is still resolute in his belief that the try should have been disallowed. Sutherland blamed the referee, who had given a different interpretation of the rules from that applied in previous games on the way to the final and clamped down on the students’ ‘ingenuity’ (the two man lineout). (A full list of the team sheet for the game can be seen in Appendix 1.)

According to O’Hagan, one of the Old Belvedere trainers who went to the UCD dressing room to perform the customary commiserations suffered a heart attack, and despite the best efforts of Tom Feighery, then a medical student, to save him, he died. The post-match dinner was postponed by a week. Tony O’Reilly, who was coming to the end of his playing career, was the guest of honour. O’Reilly was capped 29 times for Ireland and played for the British and Irish Lions on two tours. He also became the chief executive of Heinz and one of Ireland’s most successful businessmen.

Tony Hickie’s son Denis played for Ireland, as did Tom Grace, Con Feighery and Shay Deering. Frank O’Driscoll got a few B caps for Ireland; although he decided to concentrate on his career in medicine, his son Brian became a rugby player of some note. Joe Cummiskey became a prominent medical consultant and a leading campaigner against doping in sports until his death in April 2018. Fergus Slattery, meanwhile, became one of the legends of the game, touring with the British Lions as well as winning numerous caps for his country.

Sutherland himself went on to captain Lansdowne in 1970, but retired from playing at the age of twenty-eight. According to O’Hagan he was never a star player as he needed to be bigger, but he has never played with anyone so driven. ‘I have never seen anybody so upset at losing a match. He just saw black. He would descend into a slough of despond, but neither have I ever seen anybody to be so elated when we won.’

3
THE ARMS TRIAL

SUTHERLAND WAS CALLED TO THE BAR IN 1968, and devilled – ‘devilling’ being the period of training that every new Irish barrister has to undertake – under senior barrister Harry Hill along with another ambitious young barrister called Michael Moriarty. Aged thirty-seven at the time, the dapper Hill had a reputation as being one of the finest barristers in the Four Courts. A keen cricketer, who never married, he had a predilection for good food and fine wine.

Sutherland picked up more than the law from his master. About a year after Sutherland had begun practising at the Bar, Fr Noel Barber asked Hill how his former pupil was doing. ‘Too well. I worry about him,’ he replied. A couple of years later, Fr Barber reminded Hill of his concern and he replied that he was wasting his time worrying. ‘Sutherland was going to the top.’

Hill would serve as Master of the High Court between 1984 and 2006, while Sutherland and his former master would remain close friends until the latter’s death in 2006. ‘Harry Hill never compromised his principles, or his opinions. He disliked above all posturing, cant and hypocrisy,’ Sutherland wrote in an appreciation that appeared in the Irish Times. ‘He sought to hide his light under a bushel, but what drove him fundamentally was personal relationships, sport and the Bar, probably in that order. Those who knew him know what a man of true quality he was.’[1]

Sutherland quickly established himself in the Law Library, the regulatory and representative body for barristers. David Byrne, who was called to the Bar in 1970, two years after Sutherland, and would also become attorney general (between 1997 and 1999) and a European commissioner (between 1999 and 2004), says that from the beginning Sutherland was ambitious, hard-working and very determined to be successful. ‘He was excellent. He was a charming, clever man and he had a capacity to make and keep friendships. He minded his friends. He just had that way with people that was very attractive, and as a consequence he was able to build a practice in the Law Library fairly quickly. He’d a very good style in court.’ Nicholas Kearns observed: ‘He [Sutherland] was born with ambition. He was like a heat-seeking missile. No matter what he did he was always going to do well. He was a formidable rival and competitor in court and outside it. If he couldn’t go around a problem he would go through it.’

Sutherland soon built up a lucrative civil law practice, helped in no small part by his father’s insurance business. Insurance defence work would have been the holy grail among barristers. There was much less work around for barristers in the 1970s than there is today, but equally there were many fewer barristers. ‘If you had connections with the law your start would be a lot speedier, and Peter’s father had been involved in the insurance industry. So that gave him a running start, because he would have gotten work in the personal injury area and work from insurance companies. That would have been a good help to him. And then of course he had a wonderful network of friends and people that he knew from school, from rugby and all of that. He was an excellent networker. He identified and made friends easily,’ another colleague from that era said.

According to former colleagues, Sutherland had a good court presence. In the Law Library there is a distinction between advocates and lawyers. Lawyers tend to be more academic, with an interest in how laws are formulated and how they relate to each other. Advocates are more drawn to the theatre of the courtroom and the gladiatorial nature of cases. Sutherland was very much an advocate. ‘Peter would have been much more interested in fighting the case, looking after the client and so far as you can, making sure that you win,’ says Byrne. ‘Therefore, if you were to divide barristers into advocates and lawyers, he would have been in the advocates camp. That isn’t to say he wasn’t a good lawyer. He was of course, but advocacy was his strong point and that isn’t surprising given his later career. He had great ability on his feet.’

John A. Costello, a former Taoiseach, gave a speech at the Law Library annual dinner in the early 1970s. Byrne recalls that, in making reference to the growing number of young barristers in attendance, Costello said, ‘You might be wondering what are the successful characteristics that are necessary to have a successful career at the Bar.’

‘I remember him saying you should fight every case as if it was your own and never write to the newspapers. They were the two bits of advice he gave.’ Sutherland would have followed those precepts without a second thought, says Byrne. ‘I’m not saying Peter was the only one who did that. That’s what barristers did for a living – it was their job. But Peter was quite relentless and had a lot of skill in how he would go about that.’ He was a formidable advocate. ‘You knew, doing a case against Peter, that everything and anything would be used against you for him to win that case.’

Nial Fennelly, a Supreme Court judge between 2000 and 2014, was a colleague of Sutherland at the Bar and acted with him on a number of cases. ‘I can’t remember him being on cases that made huge advances in law. He wasn’t on the human rights side of things like the late Donal Barrington [the former Supreme Court judge].’ But, says Fennelly, ‘He had a reputation of being very forceful as a barrister. He was always popular and well liked, but he was forceful and even aggressive as a young barrister making his way. He made a name from an early age at the Bar.’

The Law Library often appears a highly competitive environment, one that is riven with egos. A number of colleagues from that era say that Sutherland was one of the most competitive of all. Indeed, some of his tactics were legendary. One case pitted him against John Quirke, who would later become a High Court judge. They were good friends, but when Sutherland entered a courtroom friendships were left at the door. He and Quirke were appearing on opposite sides in a dispute between a landlord and a tenant, in a case heard in the Circuit Court by Noel Ryan. At one point, while the expert witness was giving valuations and evidence in the witness box, Quirke was on his feet, holding in his hand a report which he claimed vindicated his client, the landlord, and waving the report about with ever-increasing vigour.

The theatrics were getting too much for Sutherland. He leaned across, grabbed the report out of Quirke’s hand and sent it in the direction of the nearest bin. ‘The judge’s response was amusement and he didn’t admonish him. There was no row about it. Peter wouldn’t have done it out of aggression; it was more of a playful act. He got away with a lot of things by reason of his own charm, yet at the same time he would use his charm to get away with a lot of things,’ says David Byrne.

Alan Dukes, a former Fine Gael finance minister, recalls that even though Sutherland wore his ambition on his sleeve, his self-deprecating sense of humour had a disarming effect. Dukes recalls one story Sutherland told him about when he appeared before Judge Frank Roe defending a woman accused of shoplifting, not long after Sutherland’s less than successful attempt to win a seat in the 1973 general election. The defendant claimed that she was unable to feed her children because she had no home. ‘Frank Roe asked the woman would it help if she had a house. She said yes. He pointed his finger at Peter and said, “That man might be able to help you because he is a failed politician.”’

One of the first cases that gave Sutherland a national profile was the so-called Arms Trial. The backdrop to the case was the flare-up in troubles in August 1969. Since the establishment of Northern Ireland, Catholics in the province had been treated as second-class citizens, while state-orchestrated gerrymandering – until 1968 the system of property ownership had conferred greater voting rights on the Protestant population – had ensured that Catholic communities were politically under-represented. The nascent civil rights movement across Northern Ireland in the late 1960s demanded equal voting rights, among other basic conditions. The ‘Battle of the Bogside’ in Derry in August 1969, when residents of one of the most deprived areas in western Europe engaged the security forces in a week-long stand-off, is regarded as one of the seminal moments in the onset of the Troubles.

The ensuing violence was the worst that had erupted even by the turbulent standards of Northern Ireland. Simmering tensions mutated into a widespread and open conflict between the Catholic community and the forces of the state. As skirmishes escalated, the Loyalists’ response was one of implacable resistance, and they turned on their Catholic neighbours. Nationalist communities were displaced and many were forced to seek refuge south of the border. For the first time, the Troubles had become a hugely emotive and political issue in the Republic. Although the exact details remain controversial and unresolved, the Irish government’s response was to trigger a chain of events that would change the political landscape in the south.

Jack Lynch was then Taoiseach of a Fianna Fáil government. He set up a cabinet sub-committee to monitor events in Northern Ireland and co-ordinate a contingency plan in the form of emergency relief and assistance. The sub-committee had a budget of IR£100,000. Charlie Haughey, then Minister for Finance, and a future leader of Fianna Fáil and Taoiseach, took charge of the sub-committee alongside Neil Blaney, Minister for Agriculture. Deciding that there had to be a military component to the Irish government’s response, the pair enlisted the help of military intelligence to formulate a plan. Captain James Kelly, originally from Bailieboro in County Cavan, was instructed to liaise with a number of defence committees established by nationalists in Northern Ireland, and meetings took place from October 1969 onwards. It has been established that senior members of the Irish Republican Army (IRA) – an illegal paramilitary organisation – were in attendance.

Who knew about the meetings, and the decisions that were subsequently taken, became a constitutionally loaded question. In early 1970, Captain Kelly made contact with groups in Hamburg, Germany, with a view to importing arms. He was sent to Hamburg that April to organise a shipment of guns, earmarked for nationalist resistance groups in Northern Ireland, to the Republic via Dublin airport. Coincidentally, Jack Desmond – the father of Dermot Desmond, a businessman who would strike up a friendship with Sutherland in later life – was the customs officer in charge at the airport.

Peter Berry, then Secretary General of the Department of Justice, and éminence grise of the Irish state, had become aware of the scheme, which he described as a subversive plot. He ordered that the arms be impounded upon arrival at Dublin airport. When Liam Cosgrave, the leader of Fine Gael, the main opposition party, learned about the smuggling operation, he demanded a response from the government.

Lynch publicly sacked Haughey and Blaney. Both men, along with Captain James Kelly, Belfast Republican John Kelly, and Albert Luykx, a Belgian national who had acted as an intermediary in the deal, stood trial in May 1970 on charges of illegal arms smuggling. Sutherland, who had just turned twenty-four, was retained as a junior counsel on Captain Kelly’s defence team, under senior counsel Tom Findlay. There was initial surprise in the Law Library at the choice of Sutherland: his speciality was civil law and he did not have a reputation as a criminal lawyer. He did however have a relationship with Fitzpatrick’s, the firm of solicitors who represented Kelly.

To the outside world Sutherland would also have seemed politically an odd choice for Kelly’s defence team. He had a deep antipathy to paramilitaries of any hue, and one of the early factors attracting him to politics was his opposition to Haughey and all he stood for. However, there is a long-standing tradition in the Law Library to retain barristers from ‘the other side’.

Patrick Connolly, the future attorney general, acted for Haughey, with a young Dermot Gleeson, who would also go on to become attorney general, as his junior counsel. Captain Kelly’s defence was that he was not a rogue operator and had not acted outside legal channels. His case was that Jim Gibbons, Minister for Defence at the time, had been apprised at all stages of the work of the cabinet sub-committee, including the intention to import arms. Captain Kelly had been following orders at all times, it was argued. Gibbons denied that he had been aware of the plot. Crucial to Kelly’s defence was the evidence of Colonel Michael Hefferon, the head of Army Intelligence at the time.

When, a few years before his death, Sutherland put together his private papers, they included extensive writings about the Arms Trial. According to Sutherland’s account, Hefferon was regarded by the prosecution team as a significant witness in support of their case. However, the opening statement by Seamus McKenna, senior counsel for the prosecution, outlining the nature of the state’s case, had a profound effect upon him. Hefferon met Frank Fitzpatrick, solicitor for Captain Kelly, and told him that Kelly was innocent of the charges and that he could not with a clear conscience give evidence to support a case to the contrary. Fitzpatrick conveyed this conversation to McKenna in the belief that it would halt proceedings. Instead, according to Sutherland, it changed the prosecution’s stance towards Hefferon and the deployment of what had been intended as their strongest witness. Hefferon had headed the original witness list. But as the first trial progressed he was held back and was only called as the twenty-first witness, long after Gibbons had given evidence. Nevertheless, as Sutherland recalled in his account of the trial, ‘his contribution was crucial to the tenor of the case’. Sutherland continues:

Hefferon’s evidence to the first trial (28 and 29 September 1970) confirmed that: The State was engaged in training [Northern Ireland] civilians from Derry in the use of arms at Dunree (something Gibbons had emphatically denied in the Dáil on 9 May 1970). There was an active military policy for the defence of minority population in the North (as articulated by Jack Lynch’s broadcast on 13 August 1969 and elaborated in the Army directive of 6 Feb 1970).There was a specific and explicit Government directive relating to the preparation and training of the Army for incursions into Northern Ireland. When the prosecution attempted to indicate that no such directive could be located, Hefferon was very precise as to where copies were available within military files and was able to affirm that he had had the contents of that directive confirmed to him by serving staff officers (at this point Hefferon was retired from service).

Hefferon also said that: Captain Kelly was acting at all times as a serving army officer and in an official capacity. Captain Kelly was acting on orders from the Minister for Defence who was aware of his activities. Both Minister Gibbons and possibly Minister Blaney had promised arms to representatives of the Northern Defence committees. Any arms would remain at all times in a designated place and under the control of Captain Kelly and the army until a decision was made and orders given as to their disposal.

There were two trials. The first trial collapsed because of allegations of bias. The second trial would eventually collapse because of a number of flaws in the prosecution’s case, including contradictions in testimony given by Haughey and Gibbons. But that was not the end of it for Captain Kelly, nor for Sutherland. The government tasked the Public Accounts Committee of the Irish parliament to investigate the IR£100,000 spent by the cabinet sub-committee. According to Suzanne Kelly, a prominent tax lawyer and daughter of Captain Kelly, Justin Keating, then a Labour Party TD, privately told Kelly that the Public Accounts Committee had been told that its remit of looking into the money was a political fig leaf. Its real purpose was to rerun the trial, except this time it was to deliver a guilty verdict.

This time Sutherland represented Captain Kelly pro-bono. According to one former colleague, anything that Sutherland did, ‘he did with all the might of a front row forward’. The first real example of this was that Public Accounts Committee. The junior barrister cross-examined Gibbons, who was by then Minister for Agriculture, with an intensity and robustness that effectively derailed the case against Kelly.

When the second trial commenced Hefferon had been dropped from the prosecution case as a witness. His original statement remained in the book of evidence and the State justified not calling him on grounds of unreliability. He was eventually called as a ‘bench witness’ by Mr Justice Henchy during the second trial.

McKenna’s examination of Hefferon on 13 and 14 October 1970 was an attempt to salvage the State’s case during the second trial. However, it only served to highlight a number of critical issues:

The change of official policy evidenced by the directive of 6 February 1970 and as confirmation of this policy, the movement of rifles and ammunition to Dundalk on 2 April 1970 on Gibbons’ orders for possible distribution. The central role of Minister Gibbons in the whole affair, of his close advance knowledge of Captain Kelly’s activities, of the plan to store the weapons and of his knowledge of the precise location for storage (in a monastery), knowledge which gave him effective ‘control’ over the weapons. The unreliability of Gibbons’ own testimony during the trial.

At the conclusion of his evidence during the second trial, as he left the witness box, Hefferon was applauded by members of the public in the gallery.[2]

The night of Sutherland’s appearance before the Public Accounts Committee, Sutherland had dinner with his father in the United Services Club on Stephen’s Green. Billy Sutherland told his son that it was a fatal mistake to take on the establishment in that manner and it would surely undermine his career prospects in Ireland. In the event, it evidently didn’t.

*

The arms crisis has remained an open sore in Irish political life. Allegations of a state cover-up have persisted. Under the terms of the National Archives Act, papers relating to the 1970 trial were released into the public domain at the end of 2000. On 18 February 2001 newspaper reports alleged that an attempt had been made, by altering Hefferon’s witness statement, to suppress evidence that would have supported the defence case, and in particular what Jim Gibbons knew about the plan to import arms and ammunition. On 10 April 2001 a Prime Time programme broadcast by RTÉ examined the issue of Hefferon’s statement in much greater detail.

The issues raised in the press and on television were the subject of a debate in the Dáil on 11 April. In the course of the debate John O’Donoghue, the Minister for Justice, accepted that the programme’s contents gave cause for concern. Pledging to make enquiries and to report back on his findings as soon as he was in a position to do so, O’Donoghue asked attorney general Michael McDowell and the Garda commissioner to respond to specific aspects of the issues raised by the programme; their contributions were to form part of the final report.

The report, prepared by McDowell, considered the allegations of conspiracy and in doing so examined the preparation and editing of Hefferon’s statement and the preparation of the Book of Evidence (the case for the prosecution), by reference to practice and procedure at the time. It considered the procedure by reference to the law of hearsay, the relevance of the state and nature of Gibbons’ knowledge as to the guilt or innocence of the accused in the trial. The scope of the investigation also included a number of documents that were not released into the public domain, including Garda reports and intelligence files felt to contain material that, if made public, could possibly lead to an action for defamation or otherwise cause distress or danger to individuals. At the time the report was compiled several items were found to be missing, including the prosecution case file, the original Garda investigation file, and the transcripts and sound recordings of both trials.

The overall report concluded that, notwithstanding the limitations of the passage of time, the absence of key evidence and the fact that some of the key witnesses and actors were now deceased, it was reasonable to infer that while the possibility of an attempt to suppress evidence could never be definitively ruled out, the likelihood was remote.

Sutherland retained Dr Brian Jackson, the head of postgraduate studies at Carlow Institute of Technology, to look at the report. The following is an extract from Sutherland’s papers based on material provided by Jackson:

While there is no doubt that the statement made by Michael Hefferon to the Gardai was extensively edited before it was included in the Book of Evidence as served on the accused, this was usual practice and was done to eliminate hearsay and other irrelevant material and was consistent with the duty imposed by S 6 (1) (d) of the Criminal Procedure Act 1967, to provide the accused with ‘a statement of the evidence that is to be given by each of them (i.e. the witnesses)’. The Book of Evidence was prepared by three lawyers on the prosecution team. They were Aidan Browne BL, Edward Durnin of the CSSO and Declan Quigley of the AGO who appears to have undertaken the bulk of the work. He received clerical assistance from Garda John Gallagher – now John Gallagher SC (identified by Michael McDowell during the course of our discussion of 24 September). The Attorney General concluded in his report that there was no evidence of any Ministerial or any Department of Justice involvement in the process around the preparation of the Book of Evidence.

Furthermore, Michael McDowell concluded that:

There was no conspiracy or strategy on the part of the Department of Justice to deceive or otherwise influence those engaged in drafting the Book of Evidence as to the true nature of Michael Hefferon’s statement to the Gardai. Notwithstanding the edited form in which the statement appeared in the Book of Evidence, the Attorney General concluded that the original statement would have been available in the court if required under S 3 and S 4 Criminal Procedure Act 1865. Evidence from heavily annotated papers belonging to Michael Hefferon and now in military archives suggests that Capt. James Kelly had sight of and was aware of the contents of the original witness statement. Given the number of actors involved within Justice, the Gardai and the legal profession, any ‘conspiracy’ would have required wide and conscious participation and in view of the inherent risk this can be discounted (a) on the basis of the absence of compelling evidence and (b) the likelihood of a more coherent and probable explanation.

Although there were no formal guidelines for the preparation of books of evidence extant in 1970, the process can be re-imagined with the help of documents from the early 1980s. By this process the AG concluded that: There was an accepted ‘editorial’ approach employed in the preparation of books of evidence in order to eliminate hearsay and other irrelevant material. It was never practice to include witness statements in their entirety. The complete statement would have been available in the court as a matter of standard procedure. Rules and practice around disclosure of documentation at the time of the trial differed from current practice and there was no general duty to disclose, as a matter of course all witness statements to the defendants. However, there was a duty to call all material witnesses and to disclose all relevant evidence.

At this point the AG refers back to the charge before the court, a conspiracy to import arms into the State in contravention of S 17 of the Firearms Act 1925. Principally, he focused upon the terms of the specific exclusion under S 17 (8) of the Act which provides for the legitimate importation of arms and ammunition ‘under the authority of the Minister for Defence for the use of the Defence Forces’. This is a crucial distinction and Michael McDowell concluded that those preparing the Book of Evidence may have taken the view that the case turned on the intended use of the arms (not on the knowledge or authority of the Minister for Defence) and that any evidence as to the Minister’s state of mind (which accounts for a significant amount of the excised material from Hefferon’s original Garda statement) may have been justifiably excised as prima facie hearsay. While this may indicate a very narrow and specific view of the case it does not support the charge that evidence was tampered with in bad faith or that it was improperly suppressed.

The Attorney General concluded in his report that: Prosecution was already in train before a statement was taken from Col. Hefferon. While the original statement made to the Gardai may have contained material that was politically embarrassing for James Gibbons and for the Government, it did not (as was suggested by the programme and by a number of commentators) remove the basis for a return to trial of the defendants. Col. Hefferon’s evidence as given in court was consistent with his original statement and it did not provide grounds for a direction to acquit.[3]

In other words, there was no conspiracy.

*

After the trial, Sutherland went back to burnishing his credentials at the Four Courts as one of a clutch of young barristers who were destined for greater things. The Four Courts refers to the Supreme Court, High Court, Court of Appeals and the Dublin Circuit Court. Sutherland was involved in some of the highest-profile cases of that decade. In June 1970 Daniel Brolly, from Lifford, Co. Donegal, a 51-year-old foreman employed by the Board of Works, claimed damages against Patrick McGowan, forty-three, a Fianna Fáil senator, chairman of the county council, hotelier and potato merchant of Ballybofey, Co. Donegal, for alleged ‘criminal conversation’ with his wife, 34-year-old Anne Mary Maxwell, and for ‘enticing her away from his house and society’. (The offence of criminal conversation has now been abolished, but at the time it enabled a husband to claim damages from his wife’s adulterous partner.) Sutherland acted on behalf of Senator McGowan. The case generated acres of coverage across the national press as salacious details of the affair were disclosed during the trial.

An application was made by McGowan’s legal team to have the case heard ‘in camera’, but this was rejected by the judge. In his statement of claim Brolly asserted that he and his wife had been married since April 1953 and that she had lived with him and their five children until May 1969. Since that time at various dates she had been ‘debauched’, ‘enticed’ and ‘procured against her will’ to ‘depart and remain absent from his house and society’. For prolonged periods she had been ‘harboured and detained’ by McGowan at various places around Ireland, in Donegal, in Sligo and in Dublin. As a result, Brolly was deprived of the services of his wife, his inalienable family right had been violated, the constitution and authority of his family destroyed, and he had suffered great mental distress. McGowan’s defence was that Maxwell had left the marriage of her own free will.

The case was eventually settled and McGowan agreed to pay a sum of IR£3,900, although there was no admission of liability. Marie Fleming, one of Brolly and Maxwell’s five children, who suffered from multiple sclerosis, unsuccessfully brought a case against the state for the right to end her own life. She died peacefully in 2013, having written extensively about her father’s case against McGowan in her memoir.

Sutherland was also involved in one of the highest-profile cases of the early 1980s. The Stardust was a nightclub situated in the north Dublin suburb of Artane. Forty-eight young people lost their lives when fire destroyed the club on 14 February 1981, dozens more being left with life-changing injuries. A Tribunal of Inquiry into the tragedy was held under Mr Justice Ronan Keane, Sutherland representing the manager and leaseholder of the Stardust, Eamon Butterly. It was not a popular cause, and Butterly was the target of widespread public disapproval. The tribunal found that it was ‘probable arson’. It was one of the last cases Sutherland would defend. He was soon to become attorney general.

4
FINE GAEL

SUTHERLAND HAD DISPLAYED VERY FEW POLITICAL inclinations while at UCD. In a choice between rubbing shoulders with the country’s future leaders at the L&H Society and playing rugby, the latter won out every time. But a successful career at the Bar hinges on vaulting ambition as well as cultivating the right sort of political ties. Ireland was a two-and-a-half-party state in the 1960s. For thrusting young barristers looking to make an impression, it was generally a choice between Fianna Fáil and Fine Gael. The two parties dominated the Irish political landscape from the foundation of the state onwards. Fianna Fáil, for most of its existence, was a cultural movement more than an orthodox political party. It was nominally left of centre but, in reality, it attracted people from across the ideological spectrum. What united all of them was the party’s commitment to a united Ireland. Being sound on the ‘national question’ was a pre-condition for membership of the ‘Republican Party.’ Fine Gael was almost the mirror opposite. It was firmly centre right and had a natural antipathy to the sort of nationalism displayed by Fianna Fáil. Its membership tended to be big farmers and the middle classes.

Some young barristers opted for Labour, but their choice was motivated by ideology rather than ambition. Many people, including new entrants to the Bar, cleaved to one party or the other based on civil war considerations. Not so Sutherland. He came from a Fine Gael background, but not because it was the side his grandparents had taken during the foundation of the state.

Sutherland’s grandfather had been the treasurer for Dublin Corporation. When he died in 1921, the family were bereft. Sutherland’s grandmother went to W. T. Cosgrave, the Minister for Finance, and explained her family’s straitened circumstances. She was a qualified public health nurse and Cosgrave ensured that she was put on the public payroll. According to Sutherland, Cosgrave’s benevolence was one of the reasons why he was affiliated to Fine Gael. But then again, Fine Gael would probably have been a natural home for the Sutherlands. They were after all a prosperous south Dublin family.

Sutherland was also drawn to the party thanks to Declan Costello’s 1965 policy pamphlet, ‘Towards a Just Society’. Costello cited the grinding poverty and poor housing conditions in his Dublin North West constituency as one of the main reasons for writing the document. ‘Share the resources of economic recovery fairly and, when an ill wind blows, prioritise the protection of the weak and the vulnerable,’ was one of its main themes. In calling for much greater economic planning and more government intervention in the economy, it was an attempt to address the shortcomings of an increasingly sclerotic Irish state.

Garret FitzGerald also joined Fine Gael because of the pamphlet. FitzGerald, who had struck up a good rapport with Sutherland at UCD, was another Jesuit-educated middle-class boy from Dublin. His parents came from a mixed marriage: his mother, Mabel McConnell, was from Northern Ireland and had converted to Catholicism upon her marriage to Desmond FitzGerald, the Minister for External Affairs in the first Irish government.

A schism developed within Fine Gael around the late 1960s. A Dublin-centred liberal wing had formed around Costello, whereas a more rural, law and order wing remained loyal to party leader Liam Cosgrave. Sutherland and FitzGerald were firmly on the liberal wing, while future Taoiseach John Bruton was in the Cosgrave camp. According to party sources, Sutherland and Bruton, while very respectful of each other, never developed a close relationship. On the other hand, Sutherland’s relationship with FitzGerald, probably more than any other in his life, would have profound consequences. But then again, while he remained loyal, he was not unaware of FitzGerald’s otherworldliness.

‘All of us had an ambivalent relationship with Garret – he could drive you bananas,’ says Gemma Hussey, a former Fine Gael minister. ‘I mean I was a great friend and an admirer of Garret’s. He was a good, honest, clever internationalist, but he was very scattered. And he’d have his mind changed very easily.’ If she was going to meet FitzGerald about something, her husband Derry would tell her that it might be a good idea to find out who the last person FitzGerald had spoken to was, because that person would have changed his mind. ‘I think it probably drove Peter a bit mad.’

Sutherland decided to dip his toe into the bearpit of elected politics. Friends are divided as to whether by doing so he was merely laying down a marker to be used as leverage when Fine Gael got into government, or whether he was intent on pursuing a career in the Dáil. He ran for Fine Gael in Dublin North West in the 1973 general election. Comprising as it did the working-class areas of Ballymun and Cabra, this would have been far from his natural constituency. ‘I have often wondered why he did it,’ Gemma Hussey says. ‘But then you have to throw your mind back to the times.’ Sutherland, she believes, would have felt strongly that a Fianna Fáil government with Charles Haughey in its ranks would not be good for the country. ‘He did it out of a sense of duty. A lot of things that Peter did were out of a sense of duty, I think.’

Michael Sweetman had originally been selected to run for Fine Gael in Dublin North West. One of Ireland’s first committed Europhiles, Sweetman had spearheaded the 1972 referendum on Ireland’s entry into the European Economic Community, having helped Declan Costello put together ‘Towards a Just Society’. Tragically Sweetman was one of twelve Irish businessmen killed in an air crash on 18 June 1972. The group, who were among the most prominent industrialists in the country, were on their way to Brussels to set up a bureau to lobby on behalf of Irish businesses following accession to the EEC. The plane went down near Staines, west of London, shortly after taking off from Heathrow. All 118 people on board were killed.

Mary Robinson, then a Senator, and Garret FitzGerald were among those who paid tribute to Sweetman. In many ways he had foreshadowed Sutherland – he had advised Fine Gael on Europe and Northern Ireland – so it was perhaps fitting that Sutherland should take his place in the election.

Costello had been the TD in Dublin North West from 1951 until 1969 when he stood down, although he contested the 1973 election in the Dublin South West. He would serve as attorney general in the Fine Gael–Labour coalition between 1973 and 1977, and as a judge in the High Court between 1977 and his retirement in 1998. According to Peter Prendergast, head of elections for Fine Gael in the 1973 election, the rationale for running Sutherland in Dublin North West was that the seat had been held for eighteen years by Costello, who was also a barrister and came from a similar social background to Sutherland. However, friends say Sutherland was well aware that his personal circumstances jarred with his putative constituency and that is why he put Carraig an tSionnaigh, the Irish version of his address, in his campaign leaflets to disguise the fact that he lived in Foxrock.

Hugh Byrne was Sutherland’s running mate. A somewhat eccentric character with colourful and controversial views, when François Mitterrand, the former French president, was on a visit to Ireland, the Department of Foreign Affairs was staggered and dismayed in equal measure that he wanted to meet Byrne, who he had met at a EU council meeting years earlier and found to be a very agreeable companion. ‘He was normally kept well away from civilised company,’ says one Fine Gael source.

In 1973 Byrne was a Fine Gael councillor in the area, with well-established links in the community: he was a GP and a member of the local boxing club. Although the odds were heavily stacked against him, Sutherland took the election very seriously. ‘Anybody who runs thinks they are in with a chance,’ says Prendergast. The constituency may not have been Sutherland’s natural territory, yet he took to the campaign trail with the same vigour he displayed on the rugby pitch. The dashing young barrister with an abundance of charm soon began to make an impact on the doorstep. One of the peculiarities of Irish politics is that there can often be more rivalry between party colleagues running in the same constituency than between candidates from opposing parties. The electoral system is based on multi-seat constituencies with TDs elected through a system of proportional representation by a single transferable vote. The logic is that there is a much better chance of unseating an opposing candidate in a subsequent election, than unseating a party colleague.

This particular dynamic has given the normal cut and thrust of electioneering an added edge. But even by the standards of campaign subterfuge that have prevailed in Ireland, what happened in Dublin North West in 1973 has attained a unique place in the pantheon of strokes and cute hoorism. Social media has raised (or lowered) the dark arts of campaign interference to a highly sophisticated level. Before the era of mass communications, however, political parties intent on undermining a rival candidate had to resort to much cruder tactics. Byrne’s camp, who as they entered the election had estimated Sutherland’s chances at somewhere between nil and zero, became alarmed at the feedback they were getting from the doorsteps.

Locals were taken with the handsome young barrister with the silver tongue. When moreover, rumours began to circulate that Sutherland had a beautiful and exotic wife, the Byrne camp collectively decided that a more interventionist approach to their party rival would have to be taken.

Sutherland spent one evening knocking on doors around Cabra, to a generally positive response. Meanwhile a team of volunteers in the Byrne camp had reputedly found a Nigerian student from the Trinity medicine faculty. Asked to accompany them to the same houses that Sutherland had visited the previous evening, she was introduced as Mrs Sutherland. The consensus formed among Byrne’s volunteers was that in early 1970s Ireland, proof of an interracial marriage was enough to break any fledgling political career.

Prendergast insists that Byrne had no direct role in the underhand tactic. But whether he played an indirect role remains one of the great unanswered questions in Irish political life. According to Nicholas Kearns, Byrne and Sutherland ‘were made for each other. He [Sutherland] wouldn’t have minded that. He would have expected it.’

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.

Normally a file containing a proposed piece of legislation, particularly one as contentious as the Eighth Amendment, would contain reams of analysis and legal opinion. There was nothing in the file bequeathed by the previous administration. ‘Except the little green words printed by Fianna Fáil, which said “to be included in the constitution”. It looked initially, my officials thought, that the words had been produced without analysis, but we found out subsequently that the words had been considered but there was no written analysis. It was produced outside the system,’ explains Noonan. It emerged that the wording of the amendment had not been prepared in consultation with any government department. It is the understanding of this book that the original proposal for the amendment was put together by Sutherland’s UCD lecturer in constitutional law, Justice John Blayney, a Supreme Court judge between 1992 and 1997. Blayney died in June 2018, aged ninety-three, one month after the Eighth Amendment was repealed through a referendum.

The wording of the amendment was as follows:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Noonan says that when the proposed legislation was published, it looked as if it would have a seamless passage through the Oireachtas. ‘Then there was speculation that there could be trouble over the wording. Peter [Sutherland] gave informal advice first that there were problems with the wording. Then it became very difficult to proceed. There were a number of problems with the wording but he focused on possible risks to the life of the mother.’

According to Noonan, his officials in the justice department also identified problems with the wording of the amendment. In particular they believed that it was ambiguous and that it would be challenged in the Supreme Court, which could potentially pave the way for the introduction of abortion in certain cases. ‘Both Peter and myself were telling the government there was a difficulty, there was a different emphasis. He said there was a risk to women and the risk I was bringing to cabinet was that the amendment was not fit for purpose and instead of closing out abortion, which was the intent, it would open the door to it.’

The following passage is taken from Sutherland’s private papers:

I had considered the proposed amendment carefully, over a number of months and had sought and consulted with a range of expert opinion (medical and legal) both in Ireland and further afield (principally from the US). The text of the proposed amendment presented a number of problems and these stemmed from a lack of precision in drafting. In my opinion, it was not a suitable implement with which to copper fasten the status quo. The language used, specifically around the notion of ‘unborn’ and of ‘equal right to life’, appeared to leave the matter open to interpretation in the (inevitable) event of a future appeal to the courts. This was precisely the outcome that those behind the proposal had intended to frustrate. The proposed amendment offered neither clarity nor closure on the issue. It was not fit for purpose. I presented my opinion on the wording by way of a memorandum to cabinet. The text of that opinion was subsequently released for publication.[1]

When it emerged that Sutherland had raised concerns about the amendment and its potential consequences, there was a furious backlash in the Dáil, and indeed on the part of the pro-life lobby groups. They interpreted it as an attempt by the government to renege on the pledge it had made during the election campaign. Fianna Fáil in particular had a sizeable contingent of ardent pro-lifers within its ranks, but Fine Gael also had a considerable number. FitzGerald was on the horns of a dilemma. Knowing that the wording was deeply flawed, but that politically the matter had become toxic, he took the unprecedented step of publishing Sutherland’s advice on the wording:

In summary: the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it.

Far from providing the protection and certainty which is sought by many of those who have advocated its adoption, it will have a contrary effect. In particular it is not clear as to what life is being protected; as to whether ‘the unborn’ is protected from the moment of fertilisation or alternatively is left unprotected until an independently viable human being exists at 25 to 28 weeks.

Further, having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of ‘the unborn’ will be compelled by the wording to conclude that he can do nothing. Whatever his intention he will have to show equal regard for both lives, and his predominant intent will not be a factor.

In these circumstances I cannot approve of the wording proposed. [See Appendix 2 for Sutherland’s full advice.]

The most politically expedient thing for Sutherland to do would have been to put his conscience to one side and proceed with the proposed legislation as best he could. After all, opposing the pro-life lobby on this issue was a strategy freighted with risks – not least the very public backlash from SPUC and PLAC. Nicholas Kearns says it was a very traumatic time for Sutherland and his wife Maruja. ‘Things were arriving at home in the post, nasty letters and so on. I know he was more concerned about Maruja than himself. His warning on the Eighth was brushed aside at the time, but it subsequently came to pass.’ Sutherland was a practising Catholic, but events relating to the Eighth Amendment would suggest that he had great courage and his convictions were much more nuanced.

Dukes says that Sutherland was a man of deep faith ‘but he was a powerful thinker as well. I think what he proposed for that amendment in no way compromised his faith. I think Peter, as a lawyer and AG, would have been quite categoric about the need for separation of church and state, although I never discussed that with him.’

According to Gemma Hussey it was one of Sutherland’s ‘finest moments … He was very clear and despite his own inner convictions about abortion and everything, he was absolutely clear about it. Yes he was an extraordinary Christian in the best sense of the word.’

But then again, Hussey says, she didn’t know exactly what Sutherland’s views on abortion were. Neither did his close friends. He was a man of deep faith, but he certainly didn’t broadcast his beliefs. In this case, he was first and foremost the attorney general to the government and he saw it as a moral obligation to flag any potential legal problems with a piece of legislation.

Mary Robinson, who would become president of Ireland in 1990, was at the time a member of the Senate and one of the leading campaigners in the country against the Eighth Amendment. ‘Peter was trying to get Fine Gael to come out on the right side of the issue. I was actively warning in the Senate about the implications of equating the right to life of the mother with the unborn and that this proposal would be a terrible future for women. Peter was aware of these dangers. He was a very serious Catholic but in my view he wasn’t a conservative Catholic,’ she says.

Garret FitzGerald eventually announced that he was unhappy with the wording and that an alternative form of words would have to be found. The attorney general’s office said it would find words that would work. Sutherland consulted widely on the next course of action. It is understood he took soundings from Niall McCarthy, one of the leading members of the Law Library and another future Supreme Court judge. According to Garrett Sheehan, Sutherland had been very close to the Maynooth theologian Enda McDonagh, and had discussed the issue extensively with him.

Sutherland produced an alternative wording: ‘Nothing in this constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.’

The new wording was put in a memorandum, copies of which were made in the Irish Life building on Abbey Street where the Department of Justice had a sub-office. During the process, a copy was leaked to Oliver Flanagan, a Fine Gael TD who had a reputation as a fire-and-brimstone arch-conservative. When Flanagan brought up the memorandum at a Fine Gael parliamentary meeting, consternation ensued.

David Byrne says Sutherland’s performance as attorney general at the time was ‘masterful … His wording for the Eighth Amendment I thought was excellent. I agreed with him then and I still agree with him to this day.’ Byrne had campaigned against the original wording. At the time he was a member of Fianna Fáil, and among a very small minority of the party who opposed the Eighth Amendment. He initiated, together with Frank Clark (who is now the Chief Justice), a petition signed by one hundred barristers in the Four Courts which expressed dissatisfaction with the wording that was being advanced.

‘The reason why I got involved in that was because I was at home one day having my lunch, and I heard a leading member of the Bar express a view that all lawyers were in favour of this wording – that was the conservative wording – and I knew that wasn’t the case. I was so upset about it that I went back into the Law Library that afternoon and spoke to a number of friends and colleagues and said I believed this was wrong. I believed it should not be allowed to be expressed out there that we were in favour of it in this way. The petition did not expressly favour Peter’s wording, we just said that the wording that was chosen was inappropriate and we wanted to make it clear that it ought not to be sent, that lawyers take the view that this is the right way forward. If somebody had asked me at the time – I’m sure they did, also Adrian Hardiman was heavily involved in that as well – I would have said Peter’s wording. He was absolutely right about that.’

Byrne says he believed that Sutherland’s wording was better suited if there had to be a wording. ‘I believed that the wording that included a positive right to life or equal right to life would cause an enormous amount of trouble.’ He added that ‘it couldn’t possibly be properly adjudicated on by the courts; it put a very, very unfair burden on the judiciary if ever there was a dispute, which would be inevitable … I also felt that something like that would be better dealt with by statute rather than by constitution. I’m a great respecter of constitutions but you have to be very careful what you put into a constitution because you must remember that it is intended – and was in this instance intended – to fix the law into the future irrespective of the shifts or changes in public opinion. If you do things by statute rather than by constitution it allows for changes in the law to take place more easily, where the elected representatives of the people who make laws in parliament are the ones that can respond to the new changes or ideas that were there.

‘I believe that, as a matter of law and politics, is a better way to respond to things. That’s the very thing that the pro-life lobby did not want to happen. They wanted to lock this into the future and that’s what I felt was wrong. I felt at the time that Peter’s answer to that was a good one because it responded to the request of the pro-life lobby that the constitution should not be used to interpret in an unexpected way a right to abortion. Peter’s amendment would have dealt with that, but that wasn’t enough for the pro-life lobby, they wanted an expression of a positive right to life. As we know, that created so much trouble and Peter was absolutely right about that.’ David Byrne discussed the dilemma with Sutherland at the time. ‘He felt passionately about it.’

The task of going through with the proposal again fell to Michael Noonan. Many members of Fianna Fáil, unhappy that the original wording of the Eighth had been replaced by what they considered a watered-down version, decided to act. They enlisted the help of eight diehard pro-life members of Fine Gael, and between them they were able to get a parliamentary majority to reinstate the original wording of the amendment. Noonan and Fine Gael then had to steer through an amendment to which they were opposed.

On 7 September 1983, Ireland voted by a majority of 66.7 per cent to 33.3 per cent to adopt the Eighth Amendment. Over the next thirty-five years Ireland’s abortion laws were rarely out of the headlines, and usually for the wrong reasons. In particular, what became known as the X-case in 1992 (referred to as such as the girl involved could not be legally named) received widespread international condemnation. That year a fourteen-year-old girl reported to the Gardai that she had been raped and as a consequence was pregnant. When her parents informed the Gardai that the girl was travelling to the UK for an abortion, attorney general Harry Whelehan sought an injunction to prevent the girl, whose identity could not be revealed for legal reasons because she was a minor, from leaving the country (stridently pro-life civil servant Matt Russell played an active role in proceedings). Justice Costello, sitting in the High Court, granted the injunction, but the Supreme Court set aside the ruling and the girl was allowed to travel. Michael Noonan comments: ‘My senior officials thought the problem with the wording was subsequently what turned out to be the X-case. They actually thought it would go wider than the terms of the X-case. They were right in the sense that the wording gave rise to abortion in circumstances in line with the X-case. But they thought it would be a wider consequence arising from Supreme Court cases.’

Sutherland’s concerns about the Eighth Amendment, however, were most clearly illustrated in the tragic case of Dr Savita Halappanavar. The Indian-born dentist died in University Hospital Galway in October 2012, having developed a sepsis infection during a miscarriage. It subsequently emerged that she had requested an abortion when she began to miscarry, but she was denied the procedure on the grounds that it was illegal. If the abortion had been performed it would probably have saved her life.

When the story broke it hardened public opinion. The government pledged to hold a referendum on reforming Irish abortion laws; when it took place on 21 May 2018, 69 per cent of the Irish people voted in favour of repealing the amendment.

6
THE TROUBLES: NEGOTIATING THE ANGLO-IRISH AGREEMENT

ALONGSIDE DIVISIVE SOCIAL ISSUES SUCH AS THE Eighth Amendment, events in Northern Ireland formed a prominent backdrop to Sutherland’s time as attorney general. Ever since the foundation of the Irish state, relations between Dublin and London had been shaped by distrust and enmity. But the level of hostility escalated when the Troubles flared up in the late 1960s. There was a view in Dublin that the British government neither understood nor cared about the plight of the nationalist community in Northern Ireland. Allegations of collusion between security forces and loyalist paramilitaries, as well as evidence of a shoot-to-kill policy on the part of British armed forces based in Northern Ireland, deepened the level of antagonism in Irish government circles.

By the early 1980s, the IRA had extended its campaign of terror to mainland Britain. The assassination of Lord Mountbatten in Sligo in 1978 increased the level of distrust. Airey Neave, a Conservative MP who was close to British Prime Minister Margaret Thatcher, was killed by a car bomb planted by the Irish National Liberation Army (INLA), another Republican paramilitary organisation, outside the House of Commons. If anything, these events stiffened the resolve of the British government to take a yet more hard-line approach to Northern Ireland. Dáithí Ó Ceallaigh, one of Ireland’s most distinguished diplomats, served as ambassador to the UK between 2001 and 2007. In the late 1970s he was the press attaché at the Irish embassy in London. ‘I felt like I was in an enemy country,’ he says.

When Garret FitzGerald was elected Taoiseach in 1981, he set about changing the Irish government’s approach to Northern Ireland; by extension, he hoped that this would form the basis of some sort of rapprochement between Dublin and London. Among those FitzGerald selected to play a crucial role in the formulation of the Anglo-Irish Agreement was Michael Lillis.

FitzGerald had come across Lillis when he was based at the Irish embassy in Washington. Lillis had been very influential in getting senior Irish-American politicians such as Tip O’Neill to focus on Northern Ireland. He had helped prepare a speech for Jimmy Carter which for the first time didn’t by default side with the UK government in relation to Northern Ireland. In the short-lived 1981 government, Lillis was appointed diplomatic adviser to the Taoiseach, a post that had never existed before and has never existed since. He struck up an immediate relationship with Sutherland, who he says referred to the Fine Gael–Labour coalition as Camelot: ‘You didn’t know from one moment to the next if the government was going to fall.’

The attorney general’s office at the time was in the basement of the Department of An Taoiseach, with the Taoiseach’s office on the first floor. Lillis had an office next door to FitzGerald. Alexis FitzGerald, the Taoiseach’s special adviser (the two were unrelated), also had an office on the first floor. Liam Hourican, who would become Sutherland’s deputy chef de cabinet in Brussels, was at that stage the government press secretary. Declan Kelly, the Taoiseach’s private secretary, completed Garret FitzGerald’s inner circle.

Lillis and Sutherland would go for a coffee every day in a café across the road from Government Buildings. ‘There was a confectionery shop and a café. We would go there every morning about eleven. Peter was very fond of the cakes, but he was clearly under instructions not to be eating so many of the things. He used to hold them behind his back in case I would see them. And then he would gobble it. He had a weakness in that regard,’ Lillis recalls.

‘He had a very powerful personality, even at that stage. He was extremely good company. He was brilliant but somewhat downright in his views. When he was getting a bit tense about what Garret was up to, he would kick my door open and come in and utter a few very rude words and accuse me of screwing up. It was just a way of letting off steam. I always enjoyed it though.’

Lillis, Sutherland, the Taoiseach and Alexis FitzGerald would meet regularly to discuss the ongoing hunger strikes in Northern Ireland. IRA inmates in the Maze prison had stopped taking food in protest at the conditions in which Republican prisoners were held, their demands including the right to political prisoner status and to wear civilian clothing. The British government was implacable in its resistance, and when one prisoner, Bobby Sands, died on 5 May 1981, the already volatile situation in Northern Ireland deteriorated still further. The FitzGerald government developed a close relationship with John Hume, the leader of Northern Ireland’s Social Democratic and Labour Party (SDLP), the moderate nationalist party. Hume was a regular visitor to Government Buildings and to the Taoiseach’s private residence.

But FitzGerald wanted to give people in the South a perspective on Northern Ireland Unionism. Even though Ireland was a small country and it was only seventy-five miles between Dublin and Belfast, the border was to all intents and purposes hermetically sealed. Apart from the Troubles being broadcast on RTÉ, very little was known about daily life in the North, particularly among the Unionist community. Equally, people in the North knew very little about what was happening in the South, although where Unionists did have a view it was overwhelmingly negative. The South was seen as insular, economically underdeveloped and controlled by the Catholic Church. In other words, there was no compelling reason why Unionists should extend the hand of friendship south of the border.

Lillis was given the job of finding Unionists to come to Dublin to articulate issues from their viewpoint. ‘I found a group of them. They were barristers. There was a guy called Robert McCartney. He was a very brilliant man but very prejudiced. There was a man called Smith. Both of them were QCs.’ Sutherland, says Lillis, played an important role in persuading both men to come to meetings in Dublin. ‘Peter’s personality and reputation was such that they treated Peter with respect. He was one of the better-known barristers in Dublin.’ The meetings were private, although the government announced that they were taking place and explained what they were intended to achieve.

With the fall of the government in March 1982, Charlie Haughey, the leader of Fianna Fáil, formed the twenty-third Dáil, which lasted until December 1982. During this unstable period, the development was not lost on Margaret Thatcher, and it helped confirm her outlook on Anglo-Irish relations. Throughout 1982, relations between Dublin and London deteriorated further. Thatcher accused Haughey of treachery when in May 1982, he withdrew Irish support for the UK’s United Nations sponsored sanctions of Argentina over the Falklands war. The prospects of a breakthrough in relations with London looked remote when FitzGerald formed the twenty-fourth Dáil at the end of 1982. Sutherland was again appointed attorney general. By the time the new government was formed, Dáithí Ó Ceallaigh had been posted to the Anglo-Irish division of the Department of Foreign Affairs in Dublin. He got to know Sutherland well over this period.

Sutherland’s background and personality, Ó Ceallaigh explains, were very important factors in finding common ground with London: ‘Personalities play a huge role in complex and sensitive negotiations.’ Sutherland developed a close relationship with Sir Michael Havers, the UK attorney general (perhaps better known as the father of the actor, Nigel Havers), and their relationship provided an important axis in negotiations.

‘In the 1980s there was an instinctive dislike among the English of the Irish,’ Ó Ceallaigh says. ‘But equally there was a very simple nationalism in Ireland that was anti-English. Sutherland’s background, particularly his Jesuit education, was not like that. He didn’t have that innate dislike or mistrust of the English. He didn’t feel as if he had to bang on the table as many Fianna Fáil politicians did. It made it very difficult for them to engage with the British. There was a retreat into a green jacket by Irish politicians and the same on the other side. Sutherland was above that. He had an incredible intellectual capacity, a huge moral backbone.’ Sutherland’s attitude, says Ó Ceallaigh, enabled him to engage with the British and convince them not only that they could deal with the Irish, but that the Irish were not in favour of violence.

Lillis agrees with Ó Ceallaigh’s assessment: ‘The role of Sutherland was very important. Sutherland was the right sort of guy to deal with the Brits on these issues. He was never dismissive or hostile.’

FitzGerald instructed Lillis to take the first step in making a series of proposals to the British government. At the time, the main forum of discussion between the two governments was the co-ordinating committee of the Anglo-Irish intergovernmental council. Although it enabled senior officials to meet, in reality it was nothing more than a talking shop, focusing mainly on what the two governments could do together in uncontroversial areas such as agriculture and education.

‘I took an initiative with my opposite number, Sir David Goodall, who was number two in the Cabinet Office to Lord Armstrong. We got the ball rolling,’ Lillis says. ‘I made a bid which was considered to be outrageous by the British. I was setting the bar high. Things were in an appalling condition in Northern Ireland. The Provos’ – the Provisional IRA – ‘were recruiting. The Unionists would not give ground. The SDLP was under pressure. Loyalists were engaged in sectarian shootings. The UK had no idea what to do. I made a proposal that things were so bad there was nothing that the UK could do which would address the issues, or at least put the brakes on in terms of the alienation of the minority nationalist community. I proposed they needed our help. They needed the involvement of the Irish government through security and the court system, including the guards and the army. The idea was that the involvement of the Irish government would help the minority population accept the system of authority in the North. Behind that was our project, which was to have a system of the two governments involved in ruling or governing Northern Ireland.’

FitzGerald, Hume and Sutherland were aware of what Lillis was doing, but very few others at that stage had any idea. To the surprise of the Irish government, Thatcher reacted with interest to Lillis’s proposals. ‘She knew that they were in a mess,’ he says. As a result, exploratory talks began in 1983. The inner circle that were kept privy at all times were the Taoiseach; Dick Spring, the Tánaiste; Peter Barry, the Minister for Foreign Affairs; Michael Noonan, the Minister for Justice; and Sutherland. A marathon negotiation began, which lasted two years. Thirty-six meetings were held over that period, often going on for two or sometimes three days.

Sutherland and Havers held numerous important meetings, organised by Richard Ryan at the Irish embassy in London, which covered a range of complex issues. One such was the idea, proposed by Lillis, of a mixed court system in Northern Ireland, whereby an Irish judge would sit with two Northern judges. The Irish government believed that it was the most effective way of ensuring that the nationalist community accepted the judicial system in Northern Ireland, which was seen as biased and unfair. ‘Unfortunately,’ says Lillis, ‘our side screwed up on the mixed courts issue.’

The Taoiseach, by his own admission, was the main culprit. Before the issue of how a mixed court system had been properly explored in the main channel of negotiation, which was headed on the Irish side by Dermot Nally, secretary general of the Department of An Taoiseach, and by his UK counterpart Robert (later Lord) Armstrong, FitzGerald attended a rugby match at Lansdowne Road with his son Mark and Sutherland. The Lord Chief Justice of Northern Ireland, Lord Lowry, was also present. FitzGerald started discussing with Lowry the benefits of a mixed court system and the next stage in the development of the initiative. Lowry was completely unaware of the proposal and subsequently sent a hostile message to Lord Hailsham, the UK Lord Chancellor.

The Lord Chancellor was then semi-independent of the UK government and responsible for the court system. Both Hailsham and Lowry threatened to resign if the mixed court proposal went ahead. ‘We messed up on that one. Hailsham didn’t just dislike the Irish but to an unusual extent he was deeply anti-Catholic. Thatcher was deeply upset. She wanted mixed courts. But she couldn’t overrule Hailsham. Sutherland tried to get us back on that one through his channel with Havers, but to no avail,’ says Lillis.

Another very important development over this period was the New Ireland Forum, an attempt by the Irish government to reach a consensus among nationalist communities on both sides of the border on an agreed constitutional settlement for Ireland. There was no input from Unionist communities. Sutherland was in regular attendance at the forum, and an official called Richard O’Toole from the Department of Foreign Affairs caught his eye. O’Toole would play an important role in Sutherland’s next career move.

When the New Ireland Forum reported in May 1984, it suggested three possible solutions for the crisis in Northern Ireland. These were a federal united Ireland; a confederated united Ireland; and joint sovereignty over Northern Ireland between Dublin and London. One of the most memorable episodes of the long and tense negotiations that culminated in the Anglo-Irish Agreement was Thatcher’s very public rebuke of the proposals in her infamous ‘out, out, out’ press conference in November 1984, which was damaging to FitzGerald and the government at the time. ‘But it wasn’t actually her intention. She was like an elephant in a china shop in many ways. She had no subtlety. She couldn’t deal with any ambiguities,’ Lillis says. ‘They had told us the three proposals were already not acceptable. We already knew that, but it was the way she said it. There was a lot going on in the background.’ Thatcher made the comments after a scheduled summit meeting at Chequers. The summit had been convened so that both sides could assess what progress had been made in the talks. Lillis says that until then, negotiations had been going along relatively smoothly. There were disagreements between the two sides – and interestingly, numerous disagreements within the British side – but the Irish government had kept a tight rein on the talks. Information was shared only between FitzGerald, Spring, Barry, Noonan and Sutherland. ‘They were informed on everything. There was a lot of back and forth with London. Thatcher would blow hot and cold. She could get very vituperative. One day she would tell the Irish where to go, then a few days later it would be back on again. It was very hard for the British side because their boss couldn’t make up her mind. On the Irish side there was much more uniformity and coherency. Sutherland kept a very sharp eye on all of that. He was regarded by the rest as an expert on how to read the British.’

On 12 November 1984, before that Chequers summit, a meeting was held of the entire cabinet. One of Lillis’s jobs was to write a memorandum about the state of negotiations. ‘We tend to think of Fine Gael as being less nationalist than Fianna Fáil. If you rub them up the wrong way they can be worse than anyone,’ he says. Before that meeting in Chequers, a couple of issues had arisen. Lillis shared with the cabinet certain documents from Britain proposing that the Irish government’s role in the future governance of Northern Ireland would be conducted at a very low level. But in return for this consultative role, the Irish government would have to change Articles 2 and 3 of the constitution, which because they made a claim on Northern Ireland were a source of deep antagonism among Unionists. (The articles were eventually ditched by plebiscite following the Good Friday Agreement in 1998.) Furthermore, the documents said, the SDLP would have to accept that it would have no role in a Northern Ireland government and would have to accept a subordinate role as a member of the Northern Ireland Assembly.

‘It was unfortunate it was expressed in those terms because it wasn’t really the British position. We knew that. It was a document that was given to us at that time that didn’t reflect the British position positively and it was a reflection of a meeting the British side had with Thatcher. She had become highly irate about what the Irish side was looking for,’ Lillis says.

But the cabinet reacted with outrage. It felt that London had been bullying the Irish negotiating team. The cabinet demanded that before FitzGerald went to Chequers, the officials would deliver a strongly worded response. ‘Sutherland was dragged into it. It ended up in diplomatic terms with what is known as a speaking note. It is basically a letter except you read it out. It’s a way of delivering a message from one government to another, especially if there is tension between the two. I got the job of delivering it to the British government. I could see it would end up doing a lot of damage to our relationship with London. Sutherland didn’t want anything to do with it, but was given the job of drafting it. It came out in belligerent, hostile terms. In the end I was sent over to my opposite number David Goodall. He was very well disposed to doing a deal. He knew that Thatcher would blow a gasket if she saw the demands coming from Dublin. It was the only time Sutherland took an extremely hard nationalist line. It wasn’t the real Sutherland.’

When Lillis phoned FitzGerald from London and told him it would be a very unwise move to deliver the note, the Taoiseach gave him permission to draft an alternative, less strongly worded letter. Lillis had a meeting with Goodall and the two drafted a second letter of protest. Delivered just before the Chequers summit, it ended up being a mild rebuke rather than the dark green fusillade originally intended.

Sutherland was not at Chequers, but the meeting was quite positive and had made a lot of progress. It was afterwards, when the two governments each went off to their respective press conferences, that things went awry. It was mistimed. The British government did not hold its press conference at the scheduled time, so the Irish government did not know about the ‘out, out, out’ comments when FitzGerald addressed the assembled media.

Running parallel to the Anglo-Irish talks, Sutherland had been dealing with another sensitive area that was a source of deep tension with London: the refusal by the Irish courts to extradite Republicans suspected of paramilitary activities. From 1965 onwards, Irish courts had refused extradition warrants based on terrorist offences because they were deemed to be political crimes.

The case of Dominic ‘Mad Dog’ McGlinchey happened under Sutherland’s watch. Formerly a member of the IRA, McGlinchey had transferred to the INLA in the early 1980s. Even by the standards of the time, he was a particularly violent individual – he claimed in a 1983 interview that he had been responsible for at least thirty murders, and was believed to have been responsible for the 1982 Ballykelly disco bombing which claimed the lives of six British soldiers and eleven civilians. In 1981, extradition proceedings had commenced when a warrant was issued by Ballymena District Court on 24 June. Laurence Wren, the deputy commissioner of An Garda Síochána, endorsed the warrant for execution in the state. McGlinchey, at that point still in Portlaoise prison, challenged the process, claiming that the offence specified in the warrant was ‘political’ and that once extradited, he would also be charged with other offences of a political nature.

McGlinchey’s case was heard in the High Court on 17 May 1982. By the time of the appeal he had been released from prison and was living at an address in Dublin, at Colliers Avenue, Ranelagh. After Mr Justice Gannon dismissed the appeal on the grounds that no evidence had been presented to substantiate the ‘political’ nature of the offence, the case was taken to the Supreme Court. Here, McGlinchey’s counsel abandoned the ‘political’ defence to the original offence, relying instead on the argument that there were substantial grounds for believing that if extradited he would be prosecuted for political offences. The appeal was again dismissed. Although ‘political offence’ had not been claimed, the Chief Justice went out of his way to assert that terrorism had rendered obsolete many judicial authorities on political offence, and that the burden of proof in establishing whether an offence was political or not should rest, not with the offence, but in the particular circumstances of specific cases and ‘what reasonable, civilised people would regard as political activity’. The judge ruled that the plaintiff had failed to prove his case.

Sutherland wrote in his private papers that in the context of extradition law, and in the wider contexts of the Irish political landscape, cross-border and Anglo-Irish relations, this was a landmark judgment:

Chief Justice O’Higgins’ ruling effectively removed the motivation of individual perpetrators from consideration and tilted the balance toward the specific nature of the case. The case did not produce a flood of extraditions. Edgar Graham’s exaggerated claims of ‘safe haven’ were unfounded. But the case was a significant step in shaping public perception and political opinion at a very delicate moment in our history.[1]

McGlinchey skipped bail during the hearing, but he was subsequently apprehended in March 1984 following a gun battle with Garda’. In a last-ditch attempt to avoid his removal to the North, his legal team sought an injunction from the High Court to place a stay on his extradition pending a further appeal on grounds that the Extradition Act 1965 was unconstitutional and the original warrant issued by the District Court in Ballymena had expired. When Judge Barrington granted the injunction, on the afternoon of Saturday 17 March, Sutherland convened a sitting of the Supreme Court on the same night.

It was a controversial move. In his judgment, the Chief Justice had recognised McGlinchey’s right to lodge an appeal; however he noted that, as the original case had been based on an appeal for protection under the Extradition Act, it was a cynical abuse of process to now seek to challenge the constitutionality of that legislation. He dismissed the appeal and noted that as the Extradition Act was a complete piece of legislation it could not be limited by the rules of a district court in another jurisdiction. McGlinchey was immediately extradited to Northern Ireland.

Sutherland’s decision to order the Supreme Court to sit on a Saturday night divided opinion in the Law Library. When Tom O’Higgins contacted Brian Walsh on Saturday afternoon to check whether he was available for a sitting of the Supreme Court that evening,[2] Walsh said that he was available but he opposed the extradition. He was not contacted again. O’Higgins subsequently said that he had already enlisted Justice Henchy and Justice Griffin and therefore did not need Walsh’s services.

There was a considerable backlash against the move. A colleague of Sutherland’s at the Law Library at the time comments: ‘I had reservations about Sutherland’s McGlinchey decision where he got the Supreme Court to sit at night on St Patrick’s Day in the cold and the dark.’ Tom O’Higgins, he says, was a deeply conservative figure who was sitting as the Chief Justice at that time, and who, regarding an application to have McGlinchey sent to the North immediately, would have been ‘the right judge to make that application to’.

‘A lot of people were concerned that this was done at night, on St Patrick’s Day, without any opportunity for the issue to be adjudicated upon in a calm way in the full light of day,’ said one of Sutherland’s former Law Library colleagues. The view from this colleague was that Sutherland wanted it done quickly and promptly.

‘It’s not an illegitimate view. I didn’t agree with it. I’m not saying he was wrong, I’m just saying we would have had a divergence of view. But it’s again an indication of Peter’s approach to things. There certainly would have been – and still to this day there would be – a body of opinion that wouldn’t have agreed with his stance on that, but it’s another example of Peter acknowledging that there was already a decision of the court in relation to the issue and all that he was doing now was copper-fastening it: get this thing done, we need it done quickly, let’s move on before a head of steam builds up for the opposition,’ added Sutherland’s former Law Library colleague.

The Anglo-Irish Agreement was designed and negotiated by another cabinet sub-committee, comprising Taoiseach Garret FitzGerald, Minister for Foreign Affairs Peter Barry, justice minister Michael Noonan, Tánaiste Dick Spring and attorney general Sutherland. ‘Within that group Peter was influential,’ Noonan says. ‘We met regularly for a long time. Peter had very good insights and contacts. His relationship with Havers was particularly important.’

Noonan attended a meeting in London with Tom King, the former Secretary of State for Northern Ireland, whom he told about the change of position on extradition. ‘He was absolutely delighted. He left the room to make a phone call, I presume to Thatcher. As a government, the two Peters, myself and Garret and Dick were ad idem on this. We all wanted legal cover to make terrorist offences extraditable on the grounds that they were not consistent with democratic societies. Terrorist offences, which would not be considered political in any democratic humane country, would no longer be political. So that opened the way for extradition. The British were pressing us very hard,’ says Noonan.

Dukes says that there was agreement at cabinet level about McGlinchey’s extradition. ‘Peter would lay out the legal case and then there would be a political discussion. He would say that these are the limits in which you have to make a decision. It was always very clear. Peter’s reasoning on McGlinchey was particularly clear. What he was being accused of was a crime in the Republic just as it was in the North, so we had no reason not to extradite him. He made the point that if somebody was in the North and had committed a crime down here, we would expect the authorities in the North to be amenable to an extradition. He was very clear that politics cannot abrogate the rule of law.’

The case against McGlinchey, however, fell through in Northern Ireland, prompting criticism of Sutherland’s decision to extradite him. Adrian Hardiman, at the time a prominent barrister and later a Supreme Court judge, went on RTÉ’s Morning Ireland radio programme in October 1985 and launched a blistering attack on Sutherland, who by then had taken up the role of European commissioner.

During the course of the interview, Hardiman rejected the view that the collapse of the McGlinchey case reflected badly on the legal profession in Dublin. ‘I think that the person who would be very considerably embarrassed if he were still around to be embarrassed is the former attorney general Mr Peter Sutherland,’ Hardiman said. ‘He was the attorney general at the time this charge was brought against McGlinchey. It looks very much as if Mr Sutherland, who presumably could have had access to the evidence, allowed the case to go forward through the Irish courts knowing that there was practically no evidence.’

After the interview, Peter Prendergast rang RTÉ with a statement. It read:

It was said by Mr Adrian Hardiman, a Fianna Fáil candidate in a recent election, supposedly speaking as a barrister, that the previous attorney general Peter Sutherland could or should have checked the case against McGlinchey which the Northern Ireland authorities had. Under the 1965 Extradition Act … Irish courts extradite against a sworn warrant that a case exists rather than having the capacity or the right to explain the case. That is the law; the attorney general has nothing to do with it. The courts decide. Mr Hardiman, as a lawyer, knows that. One can only assume that his words this morning were quite malicious and dangerous.[3]

When RTÉ broadcast the statement it was in edited form, leaving out the reference to Fianna Fáil and the ‘malicious and dangerous’ allegation. The following day, however, the Irish Daily Mirror published the claims in full. Hardiman threatened to sue Prendergast but the contretemps was resolved before proceedings were launched.

The Anglo-Irish Agreement was eventually signed in November 1985, giving the Irish government an advisory role in the affairs of Northern Ireland. Dáithí Ó Ceallaigh says that Sutherland played a vital role in the agreement. ‘We were pushing the boat out in constitutional terms. Peter was excellent at giving advice.’ Lillis agrees with this assessment. ‘He wouldn’t have been as important as the two prime ministers, but he was hugely important.’

The agreement stipulated that there could be no change in the constitutional position of Northern Ireland unless expressly decreed by a majority of the population at the ballot box. It also set out the template of a devolved government. Needless to say, Unionists were furious. Ian Paisley, the leader of the then fringe Democratic Unionist Party, led the charge, organising rallies that brought Northern Ireland to a standstill. By that stage, however, Sutherland was in Brussels.

Getting the Anglo-Irish Agreement over the line had been stressful for everybody, probably none more so than Michael Havers. When the Irish government’s papers were released under the thirty-year rule in December 2018, they contained a note written by Richard Ryan, of the Irish embassy in London, recounting a meeting he had with Havers at which the former British attorney general revealed that, when he regained consciousness following heart surgery in 1987, he had blurted out the words, ‘Paisley must die.’

*

In the summer of 1984, Garret FitzGerald faced a dilemma. He had to pick Ireland’s next European commissioner, but because of Dáil arithmetic he couldn’t afford to lose any sitting TD as the government had the slimmest of majorities. The question of how Sutherland came to be in the frame to replace Dick Burke, the outgoing commissioner, has many possible answers. A political source says that FitzGerald initially offered the position to Jim Dooge, who was then in the Senate, but he turned it down. According to Michael Noonan, he was having coffee one day with Sutherland in the Dáil bar. Sutherland mentioned the dilemma facing FitzGerald over filling the role. ‘I said to him, would you be interested. He came back a few days later and said he would. I told him there was no point telling me and he should tell Garret.’

Mark FitzGerald claims that it was his mother Joan who put Sutherland in the frame, during the course of a Sunday lunch. ‘My memory is that she was instrumental. I think she came up with the idea. But the thing about my father was, he didn’t run a commanded, controlled household like a lot of men of their time, who were chief executives or heads of organisations. I mean anyone who was in the family or anybody who was at the table, he’d regard them as equal. He’d listen to opinion, so it wasn’t all about him talking about his great ideas. So my mother made the suggestion of Peter and my father immediately saw the benefit of it.’ Peter Prendergast meanwhile says that it was he who, in conversation with Joan FitzGerald, floated the idea of Sutherland.

Whoever may have seeded the idea in his mind, FitzGerald confided in Alan Dukes that he was indeed thinking about nominating Sutherland. ‘I said he’ll be very good, but I hope that doesn’t mean I will be excluded, at which his face dropped. He didn’t want to have to make that difficult decision. I said it to indicate I didn’t want it to be an automatic decision. We had got back from Brussels in 1981 and we were just getting bedded in. The girls were at school. Although I would have loved the job, I told Garret a few days later I wouldn’t be pursuing it, to his immense relief. I don’t think there was anybody else in for it. Very few would have understood its importance and been comfortable doing it.’

Gemma Hussey claims that Justin Keating was interested. ‘I think he was disappointed, and he might have well been a very good commissioner because he was a person just like Peter who was a broader thinker than most. But I think Garret definitely had his mind made up. And it turned out to have been one of the best appointments that any Irish government ever made.’

There was only one wrinkle in Sutherland’s accession from attorney general to European commissioner. Up to that point, it was the senior partner in government who had nominated the attorney general. But now that Sutherland was leaving the post halfway through his term, Dick Spring proposed that John Rogers, at the time a junior counsel, replace him. There was a backlash against the move in the Law Library. Colm Condon, a previous Fianna Fáil-appointed attorney general, had convened a special meeting of the Bar Council, intending that it would issue a statement raising its concern about Rogers’ appointment. Sutherland, who shared his colleague’s concerns, made a number of representations to the Taoiseach about the appointment. It is understood that he canvassed Dermot Gleeson, who had recently been appointed the youngest senior counsel in the history of the state, to see if he would be interested.

Having made his own enquiries about Rogers, and after a period of deliberation, FitzGerald agreed to the appointment. But it strained relations between Spring and Sutherland.

Dukes saw little of Sutherland following their time as cabinet colleagues. ‘I was never very close to him afterwards. I met him in London after he had cancer. Before that he had the appearance of a seventeenth-century squire – the philosopher king; the smooth talker with a cigar. That day I met him he looked pale and diminished in stature. I got a shock. He didn’t make much of [his] Fine Gael connections after that. He moved off the national stage after [going to the] commission. He was never really a convinced partisan politician. He certainly approved of Garret’s direction. If Garret had been in Fianna Fáil he would have been in Fianna Fáil. And Declan Costello before that.’

*

Reflecting on Sutherland’s period as attorney general, Garrett Sheehan cites his significant role in drafting the 1984 Criminal Justice Act, an ‘extremely important piece of legislation’ in which for the first time the state recognised the rights of persons after they had been arrested. Brendan Halligan says that when Sutherland was attorney general ‘he had a reputation of having a brilliant brain and out-of-the-ordinary intellect. He was seen as Garret’s man and everybody knew that Garret had absolute faith in him. But he was also known for being his own man and a very independent thinker, so when he came out with this analysis on the Eighth Amendment, most people sat up and took notice. Peter was always very self-confident and assertive. He was one of the best AGs ever. Constitutional law was a mixture of politics and philosophy. It suited him. He had a real aptitude for it. If you asked him to draft an amendment to the constitution, he would do it and very quickly. He was one of the very few people who could do it.’

Overall, says Nial Fennelly, Sutherland was a very good attorney general. ‘Nobody would have any doubt that he was an exceptionally able man. He was terrific. He managed to combine great ambition with very human qualities. I don’t think anybody disliked him even though they all had stories about what he got up to in cases. He was always well liked.’

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