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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.’