Vote 6 - Office of the Chief State Solicitor

Mr. Damien Moloney (Director General, Office of the Attorney General), Ms Maria Browne (Chief State Solicitor, Office of the Chief State Solicitor), and Mr. Barry Donoghue (Deputy Director General, Office of the Director of Public Prosecutions) called and examined.

We shall now move on to the afternoon business. We are examining the Appropriation Accounts for 2017: Vote 3 - Office of the Attorney General; Vote 5 - Office of the Director Public Prosecutions; and Vote 6 - Office of the Chief State Solicitor. In case the public thinks otherwise, the witnesses present are not the Attorney General, Director of Public Prosecutions, DPP, and Chief State Solicitor, but the Accounting Officers who are responsible. They are not necessarily the legal people involved. We are joined from the Office of the Attorney General by Mr. Damien Moloney, director general, Ms Lynda O'Regan and Mr. David Donnelly. We are joined from the Office of the Director Public Prosecutions by Mr. Barry Donoghue, deputy director of public prosecutions and Accounting Officer, Ms Elizabeth Howlin, Ms Helena Kiely and Mr. Declan Hoban. From the Office of the Chief State Solicitor, we are joined by Ms Maria Browne, Chief State Solicitor. I did not realise until now that she was present. She is joined by Mr. Owen Wilson and Mr. Michael Fallon. It is a bit unusual to have three Accounting Officers here together but they are all in the legal sphere. To help the committee, we decided to have the three groups together. The committee wants to deal with each of the 40 Votes as voted expenditure. We do not have 40 separate meetings so we have to combine some groups.

I remind members, witnesses and those in the Visitors Gallery that all mobile phones must be switched off or switched to airplane mode. Leaving them in silent mode can interfere with the recording system.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable. While we expect witnesses to answer questions put to them clearly and with candour, they can and should expect to be treated fairly and with respect and consideration at all times in accordance with the witness protocol.

We shall start with the opening statement of the Comptroller and Auditor General. I propose that we take the three opening statements together and then move on to questions from members. We will try to deal with this as a group meeting. Since members are not all legal experts, their questions might sometimes stray across two offices. The witnesses know their demarcation lines and can assist us when it comes to answering questions.

Mr. Seamus McCarthy

I will deal briefly with each of the Votes. The 2017 Appropriation Account for Vote 3 - Office of the Attorney General shows gross expenditure of just over €14.5 million in respect of the programme for the provision of legal advice to the Government, Departments and offices, and for legislative drafting services. The expenditure included Exchequer funding of €2.2 million for the Law Reform Commission, LRC. Appropriations-in-aid totalled €668,000 for the year, almost all of which related to retained pension-related deductions from staff salaries. A net surplus of just over €1 million was due for surrender at the end of 2017.

The Office of the Chief State Solicitor also provides legal services to central government Departments and offices, including representing their interests in actions taken on behalf of, or against, the State. This office does not charge for its services.

The 2017 Appropriation Account for the office's Vote records gross expenditure of €33.1 million. This mainly comprised administration costs of €18.3 million and payments of fees to counsel totalling €13.6 million. Appropriations-in-aid totalled €1.1 million. The surplus for surrender at the year's end was €349,000.

At the end of 2017, the accumulated value of taxed costs awarded to the State but not yet recovered totalled €9.6 million. This was marginally up on the comparable position in 2016. Receipts in 2017 totalled €397,000, representing only about 4% of the 2017 year-end figure.

In my report on the Appropriation Account for Vote 6, I drew attention to a material level of non-compliance with EU and national procurement rules in respect of contracts operated by the Office of the Chief State Solicitor in 2017. This is explained by the Accounting Officer in the statement on internal financial control.

The DPP is the State's chief prosecutor in alleged criminal cases, and is independent in the exercise of her functions.

The 2017 Appropriation Account for Vote 5, for the office of the director, records total gross expenditure of €41.7 million, charged to a single programme. Administration costs, including salaries, amounted to €16.8 million. Payments to State solicitors, who act outside the Dublin region on behalf of the director, amounted to €6.6 million. Fees paid to counsel retained by the director totalled €16.4 million in 2017. The original voted provision for this area of spending was €14.5 million. The additional expenditure of €1.9 million was attributed to a greater than expected level of activity in certain courts. To accommodate the additional spending on fees, a Supplementary Estimate was voted. This allocated expected savings on other subheads to meet the additional fees, and increased the resources available to the director by a net €418,000. At the year end, the net outturn on the Vote was a surplus of just under €190,000, which was due for surrender to the Exchequer.

Mr. Damien Moloney

On the Chairman's point about four offices and one body with three Accounting Officer Votes, I apologise for the structure. The Attorney General's Office has three of those constituent offices but has two Accounting Officers. I hope that will all become apparent in the opening statements.

I thank the Chairman and committee for the invitation to discuss the 2017 Appropriation Account of the Office of the Attorney General and the 2017 annual report of the Comptroller and Auditor General. I am pleased to report that the office did not feature in the annual report. I am joined by my colleagues Ms Lynda O'Regan and Mr. David Donnelly.

I will commence by touching on the work of the Office of the Attorney General. Our primary function is to support the Attorney General in discharging his functions as legal adviser to the Government. In that regard, the office provides two main services to our clients - legal advice and legislative drafting. The scope and variety of the legal work is broad, with new areas of work being added continuously.

The advisory section of the office is organised into five specialist groups covering all major legal specialisms. This set-up allows the members of the group to become expert in the areas to which they are assigned and to provide a high level of expertise to clients. To develop the expertise of the legal advisory staff further and to encourage close collaboration with Departments, the office has been running a secondment programme since 2006 whereby advisory counsel from the office are recruited and placed as legal advisers within Departments. At the end of 2017, the office had 24 legal advisers seconded across 14 Departments and offices. The office also assigns an advisory counsel as legal counsellor to the permanent representative in Brussels. In March 2017, a second advisory counsel was seconded to the permanent representative to deal with Brexit in particular. The office had two advisory counsel working as seconded national experts in the European Commission and another in the European Parliament.

The legislative drafting service is provided through the Office of the Parliamentary Counsel. That is a constituent office, organised into four groups, each serving a number of specific Departments. This enables the drafters to build up a high level of familiarity with the work of the client Department, which in turn facilitates drafting on complex topics. Much of the work of the office, particularly the Office of the Parliamentary Counsel, is primarily driven by the Government's legislative programme. Both the advisory and drafting sides of the office hold meetings and are in regular contact with client Departments to allow for ongoing review of the services being provided.

The administration side of the office provides administrative support to both the advisory and drafting sides. It is organised into a number of business units covering human resources, finance, library and knowledge management, information technology, change management, training and development, corporate services and registry. Senior management from the administration side participates in the office's management committee, currently called the management committee and previously a management advisory committee. There is also a joint Chief State Solicitor's office-Attorney General's office management committee, which meets less frequently but acts as an umbrella for the constituent offices.

The office constantly re-assesses the need to provide legal services to its wide range of clients and so seeks to ensure that its lawyers are fully trained and resourced. This involves making sure that legal staff are fully expert in their areas of legal work and have at their disposal all resources to do their work to the highest standard required by Government. Knowledge management and information sharing is a central feature of how we operate. Precedents, procedures and practices are recorded and made available as appropriate to staff.

With regard to the 2017 appropriation account, the office operated an administrative gross budget of €15.66 million of which the outturn was €14.54 million. A significant proportion, €11.26 million, close to 72%, of our budget was allocated to salaries. This high proportion reflects the fact that the office is a legal professional organisation providing legal services to the Government and Departments and does not have expenditure programmes as such. The next largest allocation is the €2.24 million, 14.3% of our budget, for the Law Reform Commission, the sole office under our aegis. That money is channelled through our Vote as a grant-in-aid. The remaining €2.16 million, 14% of the budget, is allocated to training, IT, premises, telecoms and so on. During 2017, the office had savings in excess of €1 million. The majority of that excess, approximately €800,000, arose in subhead A1, salaries. Some €156,000 arose in A2, due to reduced dependence on contract legal expertise. Some €52,000 was from our subhead concerning the Law Reform Commission.

The savings in salaries arose due to delays in the planned filling of vacancies due to the lack of availability of panels and security vetting. The savings in A2 arose due to lesser reliance on contract drafting expertise from outside the office. The savings on the Law Reform Commission were due mainly to staff changes. In all areas of expenditure, the office closely monitors and controls expenditure to ensure appropriate use of funds and maximum value. Each month, the office's management committee is briefed on the office's financial position including such issues as the formulation of annual budgets and measures required to meet savings or staffing targets imposed by the Department of Public Expenditure and Reform.

The office operates a financial management system which greatly assists me and also informs the monthly presentation on financial matters to the members of management committee. There is ongoing development of an interface with the financial management system and the case records management system, ACME, to allow for the development of costing as well as enhanced financial and non-financial management reports.

The Chief State Solicitor’s office has a separate Accounting Officer but we work closely with it through our constituent office of the Attorney General’s office. We have a joint Attorney General's office-Chief State Solicitor's office management advisory committee which meets a number of times throughout the year. In addition, we share a number of IT systems and knowledge management initiatives to ensure efficiencies and expertise are shared. In conjunction with the Chief State Solicitor's office, the office has an audit committee which includes three external members, one of whom acts as chair. Each year, the committee agrees a programme of audits and the resulting reports and recommendations are presented to the local management committees and made available to the Comptroller and Auditor General.

The committee will be aware of the Government's extensive legislative programme which places heavy demands on the office, both in the formulation of advice on legislative provisions as well as their actual drafting. The increasing pace in the delivery of Government services means that much of the advice has to be provided and the drafting carried out in a way that meets that increasing pace, at relatively short notice. There is an increasing demand for advisory and drafting services. Government amendments should be pointed out specifically. Almost 300 Private Member's Bills have been introduced since 2016. The nature of the UK's withdrawal from the European Union has yet to be determined. However, Brexit has resulted in increased requests for advisory and drafting services, often at short notice.

The law is constantly changing, through case law, new legislation and the way it is interpreted or reinterpreted. New developments of law emerge continually, including through the actions of the European Union and its Court of Justice as well as the European Court of Human Rights and changes in international law. Our main challenge will be continuing to adapt to ensure we meet the demands of our clients, including Departments and the needs of the Government. I thank the Chairman and committee members for their attention. If members have any questions, I am at their disposal.

I ask for the opening statement from the Accounting Officer of the Office of the Chief State Solicitor.

Ms Maria Browne

I thank the committee for the invitation to attend to assist the committee with its examination of the office's 2017 audited appropriation account, which was published by the Comptroller and Auditor General in September 2017. I am joined by my colleagues, Mr. Owen Wilson, assistant chief State solicitor, and Mr. Michael Fallon, head of corporate services. I am pleased to be in a position to say that my office does not feature in the annual report of the Comptroller and Auditor General for 2017. As requested, I have provided the committee with details of expenditure in 2017 and an update on expenditure in 2018.

As members will have seen from the briefing material, my office deals with a very wide range of legal work on behalf of the State. The office is a constituent part of the Office of the Attorney General and the legal services we provide range from litigation, to commercial, to advisory, to property and other transactional services. The office has five legal divisions, each headed by an assistant chief State solicitor and organised by area of law, and a corporate services division. Legal divisions are further organised into sections dealing with specific types of legal matters. The corporate services division provides organisational and management services which support the legal work of the office. The two main areas of spend for my office in 2017 were payroll and counsel fees.

Within the administration subheads, payroll is by far the largest expenditure at €15.7 million in 2017. This equates to 47.4% of the entire expenditure from the Vote for 2017. The authorised staffing number for 2019 is 275 and we are in the process of filling a number of vacancies. The ability to recruit in a timely manner and retain specialist staff, both legal and administrative, is an ongoing challenge. Expenditure on the remaining administrative subheads, such as staff training and development, library and information services, knowledge management, utilities, building maintenance, photocopying and document preparation, telephone and postal services, and ICT facilities, amounted to €2.6 million or 7.8% of total expenditure in 2017.

The provision of legal services is spread across five legal divisions, each headed by an assistant chief State solicitor, which is equivalent to assistant secretary. These divisions are the administrative law division; the advisory, commercial and employment law division; the constitutional and State litigation division; the justice division; and the State property division.

With regard to challenges, we are a demand-led office and there is a direct and pronounced correlation between our clients' issues and the services we provide to them. Aside from our transactional work, by and large it is difficult to forecast with any degree of certainty the exact scale and extent of litigation which may be taken against the State in any given year.

Some of the work can arise at very short notice and outside of normal office hours. Specialist work requires the ongoing development and maintenance of the appropriate expertise, and the ability to respond to new developments in the law is a continuing requirement.

Expenditure on legal services includes counsel fees, general law expenses and external legal services, and accounted for 44.8% of overall expenditure in 2017. The main area of expenditure under this heading is on fees paid to counsel, which in 2017 accounted for 41% of the entire expenditure of the office.

The bulk of the expenditure on counsel fees is, to a large extent, dependent on the level of activity in the courts at any given time and so is always difficult to forecast accurately. Recent years have seen an increase in the level of complexity of the work being handled by the office in areas such as judicial review, immigration and asylum law, environmental law, and commercial and EU litigation, and this has resulted in increased spend on counsel, including senior counsel. The management of expenditure on counsel fees is a key activity for my office, and there are significant controls in place to manage this expenditure.

In terms of oversight and risk, as my colleague mentioned, the office maintains an audit committee jointly with the Office of the Attorney General. The committee includes three external representatives, all of whom, including the chair, are from the private sector. It has been in place for a number of years and meets regularly. Internal audit services are tendered externally and our current auditors were engaged following a joint Attorney General's office-Chief State Solicitor's office, AGO-CSSO, competitive tendering process in 2017.

The office maintains a risk register which is reviewed every six months. Progress is monitored by the office's management board, together with a number of joint AGO-CSSO committees, including the risk management committee and the audit committee.

I will do my best to assist the committee in its consideration of the 2017 account for my office. In the event that I do not have the information available to me here today, I will do my best to provide any outstanding material within two weeks.

I thank Ms Browne. Can we have Mr. Donoghue's opening statement as Accounting Officer for the Office of the Director of Public Prosecutions?

Mr. Barry Donoghue

I thank the Chairman. I am accompanied by Ms Liz Howlin, who is the head of our directing division, Ms Helena Kiely, who is the chief prosecution solicitor in charge of the solicitors' division, and Mr. Declan Hoban, who is head of administration. It had been stated to me informally that, perhaps because my opening statement was overly long, it might be better if I speak to it rather than read it.

We are happy with that. We will note and publish the full statement and Mr. Donoghue will speak to it.

Mr. Barry Donoghue

Exactly, yes. I will highlight some points from the opening statement that might be of assistance to the committee.

The number of files received during the year 2017 was approximately 13,600, which was 500 up on the previous year, but I make the point that the sheer number of files coming into the office does not represent the extent of work required in those cases. Particularly in the area of white-collar crime, there is a tendency for these files to be very large. For example, I understand the data on our system for those files that we dealt with relating to the banking cases amounted to 388 GB. I am not technically minded but those of the members who are technically minded will appreciate that amounts to a lot of data. Some of these files can be very large. That is also reflected in other areas. For example, in murder cases, sometimes gangland cases, a very large amount of data comes into our office and has to be assessed and analysed. That affects the amount of work that is required in those cases and affects the throughput.

Another factor I will highlight is that, as the Chief State Solicitor said, sometimes we are required to follow what others do. The number of court cases and court sittings can affect the amount of work we do and the amount of fees paid. There has been an increase, from four to six, in the number of judges sitting continually in the Central Criminal Court. That increases the number of cases being processed by the courts and increases pressure on the fee area. Similarly, since I last appeared before this committee, in 2015, there are now two Special Criminal Courts sitting simultaneously and that increases the number of cases being processed by that court and the fees payable.

Regarding developments since I last appeared before the committee, I will mention a number of issues. First, on victims of crime, the Criminal Justice (Victims of Crime) Bill 2016 has been passed by the Oireachtas. We set up a small unit in July 2015, called the victims liaison unit, to ensure that the office complies with its requirements relating to victims and their families. That unit has been very proactive and has engaged with outside agencies, ensuring training and so forth for gardaí.

We also receive, through that unit, requests from victims for reasons for decisions not to prosecute. Looking at a three-year period from 2016 to 2018, we received approximately 1,800 requests for reasons from victims. We also received requests for reviews of decisions because, under the victims directive and under the Criminal Justice (Victims of Crime) Act 2017, a victim is entitled to ask us to reconsider a decision not to prosecute. Over that same period, we received 637 requests for reviews. Approximately 40% of those cases relate to sexual offence complaints, and in a small number of cases we have reversed the decision not to prosecute and instituted a prosecution. In terms of our requirements for victims' rights, this also has an effect on court processes. We have to ensure that prosecutors, whether solicitors or counsel, are fully in a position to meet the requirements of victims under the directive.

The work of the office in the area of international matters falls into two parts. The first is extradition, where we seek the return of someone from another country to stand trial in Ireland. The second area relates to mutual assistance requests where we are looking for evidence in another country. I mention in my opening statement that the area of mutual assistance has grown quite heavily, and over the period from 2015 to 2017, the number of requests for mutual assistance doubled. That was largely driven by requests for information in the area of electronic evidence. Many requests go to America seeking electronic evidence from the large service providers there.

As part of the response to the banking crisis, we established a small special financial unit which dealt with all the banking cases over the years. Since the conclusion of those cases, the unit still operates and deals with other white-collar crime cases in close liaison with the Garda National Economic Crime Bureau.

In my opening statement, I mentioned issues to do with information and communications technology. I will highlight two of those. In some of those, we are proactively involved with others in the area, which is obviously very important in the modern world. One of the matters which we piloted is the electronic transmission of disclosure material to both prosecution counsel and defence solicitors. The Chairman and committee may be aware that in prosecution cases an important part of the work is to ensure there is disclosure to the defence on matters which may assist to undermine the prosecution case or enhance the defence case. A lot of that material can be quite sensitive and we have put in place a secure electronic transfer system with defence solicitors and counsel. That is operating at present in the Central Criminal Court and will be extended into the Circuit Court later this year.

We are also heavily involved, through Ms Helena Kiely, in the so-called criminal justice operational hub, which is a very important project from the point of view of the criminal justice system generally. It will allow data to be shared from the beginning of a case right through, from the Garda to ourselves, to the courts system, to the probation service and prison service. In due course it will be able to produce statistics, which is a problem in the criminal justice area because everybody assesses cases on a different basis, which means statistics do not match from one agency to another.

In terms of the expenditure for 2017, as the Comptroller and Auditor General has said, the largest area of cost is fees to counsel, which came to €16.4 million. As I stated, that is largely driven by the number of trials which are set by the courts. Any increase in business will affect the amount of fees paid to counsel. Extra sittings of the Central Criminal Court and of the Dublin Circuit Criminal Court, which have happened, and the new Court of Appeal are all matters which generate further court work and extra pressure on the fees side.

I will end with two issues that are challenges for the future. The obvious one is Brexit in terms of the criminal justice system. From our point of view, we are working with the Department of Justice and Equality in terms of contingency measures. We are involved in two groups looking at mutual assistance, extradition and data protection. On extradition, at some point at the end of March, it seems that we will be working under a different system with the United Kingdom. Most of our extradition arrangements are with it. We have been working with the people there on the basis of the European arrest warrant, which is a slimmed down version of extradition which works quite well. We will have to move into another area, which will be challenging.

The Commission on the Future of Policing in Ireland is a very important part of Government policy. One aspect of that commission's report referred to the role of gardaí in terms of prosecution work. The Chairman may be aware that the Garda has a heavy role in prosecution work. In most cases in the District Court outside Dublin and in Dublin, the Garda decides whether there should be a prosecution and conducts that prosecution. It is an unusual model from that point of view. The issue was looked at 20 years ago or so by the Nally group, which did not recommend any change. If we were to move away from the present system where the Garda essentially prosecutes cases in court, there would need to be an important analysis of what that would involve. It seems to me a considerable cost would be involved in replacing inspectors and superintendents in courts with lawyers.

That is something that I think we will be working on with the Department of Justice and Equality and Garda, in terms of working out some method to see how that recommendation can be implemented. I think that is going to be an important challenge for the prosecution service.

I thank Mr. Donoghue. Members have indicated in the following sequence: Deputy O'Connell who has 20 minutes, followed by Deputies Connolly and Cullinane who will have ten minutes each.

I thank the witnesses for coming in. It is refreshing to have 66% women on the committee. We have a nice 50:50 balance in the witnesses today, which is very unusual in the Committee of Public Accounts and in these Houses in general.

I will start with the Vote for the Office of the Attorney General. There is a contract for €147,096 for services. I ask for detail on that contract and why it did not comply with procurement rules. The money was spent on parliamentary services.

Mr. Damien Moloney

I just want to know where the Deputy is reading it from.

I will need to go through the folder to find it.

Mr. Damien Moloney

This is the issue of the reliance of the office to some extent on external contract drafting. We do not tender for those specific services because the market is so limited in terms of what we would get. One is not going to find that many foreign contract drafters who are expert in Irish constitutional law, as well as having the drafting skill. I might add that if I was just looking for an expert drafter without the experience in Irish constitutional law, I would still have problems but I would have additional difficulty with the double set of skill sets.

I can understand that.

Mr. Damien Moloney

The drafters we use are in a unique position that they have worked in the jurisdiction.

With regard to the pool within which the office is fishing in the Irish context, are people getting a fair crack of the whip here? Are we fishing within the one pool? I can understand why there is a limited number of people who can do this but I am trying to ensure there is no advantage to a particular person or group.

Mr. Damien Moloney

I do not believe there is an advantage to a particular person or group. There is a situation where we find ourselves in that we know will soften over time as more and more domestic drafters retire or move out of the service where we might have a wider available pool of drafters with the skill sets we are looking for to draw on.

Is Mr. Moloney saying that when the regular guys retire from the Office of the Attorney General, he can contract them in afterwards?

Mr. Damien Moloney

I am saying there is a theoretical possibility of widening the pool, which I am being asked about, but at the moment there is no possibility, as we see it, of widening the pool because one is looking at a unique subset of drafters who have experience of the domestic scene, while also having this drafting experience or qualification.

We do look at it periodically and in 2015 when we last looked it in a serious way, we got ourselves up to two drafters briefly, but the second drafter fell away. They just do not last. We have a drafter who is unique in that he is living outside the jurisdiction and has managed to stay with us, but even that arrangement will not last. We are looking at something that is transient here.

Would the fish within the pool feel the same as Mr. Moloney does? Would the people on the opposite side who are looking to get this work agree with his statement?

Mr. Damien Moloney

My expectation is that there is no market out there with this external foreign expertise that can claim a knowledge of an Irish constitutional base. We even have drafters, ourselves, who wish to work abroad. I imagine with time that could change, but I do not see it as changing from year to year.

As I know it is Mr. Moloney's first time to appear before the committee, I do not want to give him any great difficulty. There was a contractor, an auditor, who withdrew midway through a process. It states that there was an internal audit function for the office and it was in place in 2017. A contracted provider withdrew from the contract at the end of September 2017. They seem to have gone off and somebody else came in for a new contract. I ask Mr. Moloney to elaborate on that.

Mr. Damien Moloney

We have to have an internal audit function. We have an option where we could carry out the internal audit function ourselves. We have an internal accountant. We have opted instead to have an external audit for reasons of probity and perhaps also even more so because it is a small office. Having had that option, we had a contract with a particular supplier. That supplier has left this particular segment of the market. Having left this particular segment of the market, it did not stop business; it just left this segment of the market that provided this audit service to smaller outfits like ourselves. So we had to go back out to the market and seek a new supplier and tender for that. In the meantime we have obtained a new agent providing this service. Those reports are commissioned by the audit committee with the three outside members.

They were doing the work and they just went on and did something else.

Mr. Damien Moloney

They left the market.

Now the office has somebody else.

Mr. Damien Moloney

They left this particular segment of the marketplace; they are still in business.

When they withdrew, they had not been paid for any work they had not done. The office had not paid for a contract in advance before they withdrew or anything like that. It was a nice clean-----

Mr. Damien Moloney

It was a reasonably clean break. They did not leave us in the lurch. They gave us a bit of notice and they left us. Some of the longer-term promise contracts, obviously, either were not delivered on or paid for.

I thank Mr. Moloney.

I now come to the Office of the Chief State Solicitor. On the financial position, some €9.6 million is due in and receipts are €397,000. As I read it there is an outstanding €9.6 million in costs due to the office. I ask Ms Browne to elaborate on this €9.6 million that is sitting there. When does that balance out?

Ms Maria Browne

It is in respect of where there are court cases where the State receives an order for costs and then it is the pursuit of those costs. They go back a number of years. I can give the profile of the range. We have a cost-recovery unit and a lot of work is put into recovering costs. Obviously, depending on the times it is a difficult process, but where costs are awarded we pursue them where appropriate. There is a high-level meeting that takes place regularly to decide whether costs will be pursued against particular individuals based on the circumstances of the case.

In terms of the age, some of them have been going back for quite a while.

What is quite a while?

Ms Maria Browne

The oldest case goes back to the early 2000s. In some cases we have agreed repayment plans with individuals and in other ones we are pursuing. We get in a certain amount every year. A certain amount comes in by regular payments. However, we take all steps that we feel are necessary in order to recover. We go to the sheriff. We put a judgment mortgage on property if there is property involved. We have not gone so far as to actually sell anybody's property because with a lot of these it could be family homes or that, which in fact-----

Ms Browne mentioned "where appropriate". This is where that comes in.

Ms Maria Browne

Indeed.

The office makes the decision as to whether it is right to pursue these costs, bearing in mind it might leave family destitute.

Ms Maria Browne

It is one of the things we take into account, but also the level of the income of the individual. In some cases there is an examination of the debtor's means. Really it depends on whether they are a mark for costs as to how far we can get in the case.

On the €9 million, about €5.4 million of that represents one debt. It is an ongoing case that has been there for a while, which we are pursuing. It is in litigation in that there has been-----

Of the €9.6 million, €5.4 million is one case and €4.2 million is everything else. How many cases does the €4.2 million account for? Give us a ballpark figure.

Ms Maria Browne

There are 204 in total.

We have 204 cases representing less than half of the amount.

On writing off debt, at any point does the Office of the Chief State Solicitor just draw a line through it and give up?

Ms Maria Browne

No, we do not do that. In situations where we feel that the party is not a mark for costs, we maintain a database of the debt and then we review it periodically to see have circumstances changed because it could be the case that an individual takes further proceedings against the State and there may be an opportunity to use that debt as set-off, if the State is unsuccessful in that case because sometimes there are recurrent cases.

Does the Office of the Chief State Solicitor subcontract this cost recovery unit out to somebody else or is it within the office?

Ms Maria Browne

It is within the justice division in the office. There was a period when we outsourced a certain element of cost recovery to a Dublin firm but that has ceased quite a while ago. It still has carriage of some of the cases from a number of years ago but that was when there were reduced resources in that particular unit.

What does it cost per year to run the cost recovery unit? I am trying to get at whether it is worthwhile at all if the Office of the Chief State Solicitor is only getting in €397,000 so how much is it costing to run that unit? I am not suggesting we just let everybody off but I am just wondering about that.

Ms Maria Browne

I do not have a breakdown of that.

Could we get it? There is no urgency.

Ms Maria Browne

I can get that to the Deputy. That is something we also consider in terms of the time and effort involved in pursuing the debt in terms of our staff's time and in employing taxation and cost accountants for that purpose. I should correct myself in that sense when I said that cost recovery is done in-house. In more recent times, with the transfer of management of costs against the State having passed to the National Treasury Management Agency and the State Claims Agency since last year, cost accountants are involved in taxing costs so that is another cost. That is one of the things we would take into account in assessing overall whether it is worthwhile pursuing.

In terms of the bodies which are using external drafting people, I assume this relates to the locum of the situation. In terms of costs, when somebody external is being brought in to draft legislation when there is a capacity issue, does it cost more in net terms to bring in an external person or is it cheaper to have it done in-house, if the staff was there theoretically? Is there an added expense to bringing in drafters? Do they get more per hour than the person who works in the office every day?

Mr. Damien Moloney

I assume that is being directed at myself.

Mr. Damien Moloney

It is an interesting question. The arrangement has changed over the years so in about 2001, the arrangement was that they got paid the equivalent of an assistant secretary's salary and they were located within the premises. They have not been located on the premises for quite a while with the effluxion of time and Revenue practice and so on. The current incumbent lives abroad and he is paid on a daily rate and in net terms the daily rate works out at about a couple of hundred days each year. It varies depending on workload because he is piecemeal and he gets paid a daily rate. That daily rate still comes in at more or less the equivalent of an assistant secretary salary if he worked the complement of 200 days.

So the Office of the Attorney General is contracting out to him?

Mr. Damien Moloney

Yes, he is an independent contractor.

Is his pay his pay or are there pension benefits if he is on a long term contract?

Mr. Damien Moloney

There are no pension benefits but there is withholding tax. He is paid as an independent contractor.

I will turn to Mr. Donoghue and the victims of crime. He mentioned the 1,800 requests for reasons not to prosecute. I am assuming that the Office of the Director of Public Prosecutions decides not to prosecute and people phone up or send in a letter asking why it did not prosecute. Maybe I picked it up wrong. Was it that 40% of the cases in that 1,800 are sexual offences cases? Did I pick him up correctly?

Mr. Barry Donoghue

Yes, that has consistently been the pattern since the directive came in.

Did Mr. Donoghue say that in those cases the Office of the Director of Public Prosecutions often reverses or is it in all cases?

Mr. Barry Donoghue

No, the reversal is just a general figure for all of the cases in which a request for review is made.

Out of 1,800, about 40% are sexual offences but are reversals across the board in terms of case type?

Mr. Barry Donoghue

Yes, it is in various cases.

I thank Mr. Donoghue, I had just misinterpreted that.

Somebody mentioned sharing of IT systems across the groups that are here today. Are we compliant with general data protection regulations, GDPR?

Mr. Barry Donoghue

I mentioned it in the context of the criminal justice hub-----

Mr. Barry Donoghue

-----and Ms Kiely, who is our chief prosecution solicitor, is on that group and is our expert on data protection. That is a key element of it.

She might speak to that.

Ms Helena Kiely

I can say that the programme is a criminal justice hub involving the Department of Justice and Equality, the Attorney General, the Director of Public Prosecutions, the Probation Service and the Legal Aid Board with a view to having information at the centre that can be both statistical and can be a real-time account of the status of a person who is before the courts or in prison. GDPR is a huge part of this and agreements have been made with all of the agencies to allow for the data modelling. We are at the modelling stage of how this would work in practice. There is an overreaching data sharing agreement that is being drafted at the moment. We are not at a stage where live data are being shared or the projects are up and running but the two projects that it will focus on to begin with are charge sheets and court outcomes, so that information can be at the centre for all agencies with relevant information. It is looking to emulate the Causeway system, which has been in operation in Northern Ireland for some time and which has been a great success in having real-time information for all agencies. That is also useful as a predictive measure for Departments on where resources will be needed.

On workload, reference was made to 300 Private Members' Bills coming through since 2016, the increased pace and an extensive legislative programme. In bedding this down for the future, do the witnesses consider this to be just a blip in terms of a minority Government or a confidence and supply Government with the make up of the Dáil? If the workload seems to have been constantly increasing, would it not be better to try to crystallise some of the staff into permanent positions, rather than constantly relying on external people to come in for continuity in the office? Mr. Moloney might address that.

Mr. Damien Moloney

I will take that question. The structures have changed in response to where we are. The structures do not necessarily anticipate political decisions made by the electorate or elsewhere but the structures have changed. In a manner of speaking, we have become more responsive to the needs of Government in terms of drafting Committee Stage amendments to a greater number of Private Members' Bills. We obviously do not do so for all 300 because the system would have ground to a halt had we been doing so, but we do it for the amendments to Bills the Government shows an active interest in, which is a smaller subset. The structures have changed in the sense that the public law expertise used to just vest in the Office of the Attorney General. To the extent that the Attorney General offers any assistance or support to the Oireachtas, it was that every Government Bill that arrived on the floor of the Houses of the Oireachtas, was accompanied by a warranty from the Attorney General of the day that the Bill was constitutional and legally sound. Clearly, if there are many Private Members' Bills, an equivalent is needed to make that operable on the side of the Oireachtas, and while the Attorney General supports the Oireachtas in that respect, he is the adviser to the Government. The structural changes have been around the Office of the Parliamentary Legal Adviser, the elevation in the rank of the legal adviser, the increasing of the numbers of staff in the Office of the Parliamentary Legal Adviser and the creating of the public law expertise. I have a very good working relationship with the parliamentary legal adviser and that is important. It is important to both branches of Government to make sure that in a co-operative sense, the public law expertise the State has is shared in an equitable way, so that the State does not find itself funding two separate services that do not co-operate where it is possible for them to co-operate.

I could answer further but I do not want to take up all of the Deputy's time.

That is fine. I thank Mr. Moloney.

I thank the witnesses for all the information. It was helpful and educational. On the withdrawal of services, is it the case that the Office of the Chief State Solicitor and the Office of the Attorney General are sister offices and that they work closely together?

Mr. Damien Moloney

I am the director general of three offices, namely, the Office of the Parliamentary Counsel to the Government, which is a mouthful, the Attorney General's office in Merrion Street and the Chief State Solicitor's office, but I do not do all that on my own. I am Accounting Officer for only two of those offices, namely, the two in Merrion Street, the Office of the Parliamentary Counsel and the Attorney General's advisory office.

My question was only in the context of the note about the withdrawal. My colleague, Deputy O'Connell, asked about the withdrawal of the provider and Mr. Moloney has given an explanation. The same explanation is given for both offices, including the Office of the Attorney General. Was it the same contract?

Mr. Damien Moloney

We share the internal audit function across both offices and we used the external audit facility for that. In the same way, we share IT services.

So that explanation applies to both offices. It is the same provider for both offices.

Mr. Damien Moloney

Yes, because the three offices are like the three leaves of the shamrock in a manner of speaking, we are the one office. We are the Attorney General's office and we have a constitutional office as well.

Mr. Moloney said it was a positive withdrawal - that the offices were not left in the lurch, as it were.

Mr. Damien Moloney

I do not believe so.

Were there no penalties or costs?

Mr. Damien Moloney

They wished to withdraw so I suppose we would have been the one to impose penalties. It was, in the language of the day, an orderly withdrawal. We knew they were leaving for commercial reasons and that they were withdrawing from that section of the market. They were not withdrawing from the marketplace, just that section of the market. We knew that we needed to find a replacement.

The board is enlarged now.

I have a practical question on the LRC. Who do the accounts come to first?

Mr. Seamus McCarthy

I audit them.

Is it behind in giving its accounts? What is the position in terms of the 2018 accounts?

Mr. Seamus McCarthy

The 2017 accounts were certified in December. They may have been presented and they may have been noted but I just cannot recall at the moment.

Someone might just check that.

Mr. Seamus McCarthy

Yes.

Is a service level agreement in place between the offices and how does that work with LRC?

Mr. Damien Moloney

The commission receive its funding via us, through a grant-in-aid, but it maintains separate accounts in relation to that funding. We maintain the financial-----

Is there an agreement between the offices on the services or is that set out elsewhere? How does that work?

Mr. Damien Moloney

It is an independent office with its own set of functions and responsibilities under its own bespoke legislation, but we have arrangements with the office in terms of the financial control element of it and it reports to us on a monthly basis seeking its grant-in-aid. In recent years, the Comptroller and Auditor General has been inquiring about that with us in terms of our processes and one of the things we did was we converted an informal meeting with the LRC into a more formal one, so it was a structured meeting process, and that is an added check or control. Basically, it prepares its own accounts and, for reasons that are statutory in origin, the Minister for Public Expenditure and Reform presents its accounts and the Taoiseach presents our accounts.

The LRC is a good organisation, which produces wonderful reports. I was just interested in the processes and accountability but the situation has been formalised with a regular formal meeting.

Mr. Damien Moloney

Yes.

Is there no service level agreement?

Mr. Damien Moloney

We do not have a formal written service level agreement but we have processes that are formal and the commission reports to us in writing on a monthly basis to draw down the grants. I sign off each month on a regular statement from the commission about what it has done and what it needs to do for the coming month in terms of the drawdown for the grant. I get to see closely what it is doing and when there are new programmes involving finance or expenditure it meets with us. That is what I meant about the informal element; we have a lot of informal meetings because the commission has a lot of plans but there are formal structures in place. I do what I refer to as "walk the land" where I visit Departments or outlets – we have secondees in Departments as well – and I do that with the LRC. The visits are a form out outreach but we have formalised that more so it is not just a case of dropping in.

I looked through the document in respect of the Chief State Solicitor's office. It appears staffing is an ongoing challenge. Could Ms Browne please elaborate on that? There was a delay, which came up this morning as well, in vetting by the Garda. Is this a difficulty? How is the office coping with the ongoing challenges, because that is a risk to the provision of the service?

Ms Maria Browne

The challenge is on both sides of the house, legal and administrative. The legal position has improved somewhat over the years but we had serious difficulty a number of years ago when we had a number of vacancies.

What is the current number of vacancies?

Ms Maria Browne

Currently, it is a large number but only because we are creating additional posts. There are 30 vacancies, but 15 of them are new positions that are being created in corporate services and other areas.

So there are 30 vacancies in the Chief State Solicitor's office, 15 of which are new. How long have the positions that are not new been vacant?

Ms Maria Browne

Not that long. Some of the vacancies were caused by people leaving in the past year.

Can Ms Browne give us a breakdown of the numbers?

Ms Maria Browne

I can.

Why do the positions remain vacant?

Ms Maria Browne

This is to do with the lead-in time for recruitment.

Are some of the positions be vacant for between two and four years?

Ms Maria Browne

Not at present.

Are any of them be vacant for that length?

Ms Maria Browne

I do not believe any of them are currently on either side.

Ms Browne might confirm that for us.

Ms Maria Browne

I will. In terms of incoming staff, the Public Appointments Service, PAS, does external competitions for us and we do a number of our own competitions as well. We do specialist competitions in certain areas of the legal stream. We find, for example, that is difficult to get staff in IT and we are going to the market again to fill those positions. It is difficult to source IT expertise from within the service. Another issue is the periods of notice people in the private sector have to give before they can come in, which could be three months plus. We had a situation where we were waiting a considerable time for somebody to come in. It is a combination of the time to do the competitions, the time that it takes people to come in through vetting but also the speed with which some people can leave the office. Following the mobility that was introduced across the Civil Service, we have a lot of people who are from outside Dublin and they take the opportunity to move, which adds to the situation in terms of the throughput.

My final question on these accounts relates to fees to counsel. How does that work in terms of choosing counsel? Are there panels or competitions?

Ms Maria Browne

The nominations of counsel are done by the Attorney General so I will pass that question to Mr. Moloney.

Mr. Damien Moloney

The Deputy mentioned fees.

I am looking at fees to counsel in 2017 on page 14 under the provision of legal services. Generally, how are counsel chosen? What is the procedure?

Mr. Damien Moloney

If the question is how counsel are nominated, the Attorney General is the constitutional office holder and gets to have the final say in determining which counsel he wishes to have represent the State.

He gets the final say, but after what process?

Mr. Damien Moloney

With the assistance of the office, he puts a number of processes in place around creating panels of counsel so that he can meet his statutory obligation to provide suitable counsel under the Prosecution of Offences Act 1974.

Is there a process in place to allow barristers to come forward? Qualifications and experience are required and they go onto a panel. Is that correct?

Mr. Damien Moloney

Yes, counsel indicate if they are available and there is a process for indicating one's interest in being briefed by the Attorney General's office.

They are on a panel and then it is up to them.

Mr. Damien Moloney

They are on a broader list and we look at the list and we put suitable counsel onto a panel. Officials recommend suggested names to the Attorney General but the final arbiter and say is with the Attorney General of the day. The reason for that is the personal nature of the advisory service under the Constitution that the Attorney General offers to Departments and offices of the Government.

In that context, subhead A3 on page 13 of Vote 5 is fees to counsel from the Office of the DPP.

This is something over which the Office of the DPP has no control.

Mr. Barry Donoghue

That related to an increase in the number of cases being processed by the courts. There was a number of very large cases that were expensive and resulted in the requirement for a Supplementary Estimate.

Is that what happened?

Mr. Barry Donoghue

Yes.

The victims' directive is welcome. Is the office adequately resourced to deal with it? It was a long time coming.

Mr. Barry Donoghue

It was indeed.

Is the office adequately resourced to implement the directive?

Mr. Barry Donoghue

It certainly causes pressures and we are coping with them as best we can. We got sanction from the Department of Public Expenditure and Reform to create a number of extra posts and we now have three lawyers working on it. The work is sometimes spread to other sections because the effect of the victims' directive applies in court cases. It is not just a matter for the victims' unit.

Will Mr. Donoghue clarify what assessment was done to allow the office to fulfil its obligation under the victims' directive? How does the office assess whether it is doing so, particularly with regard to resources?

Mr. Barry Donoghue

One of the purposes of the victims' liaison unit is to assess how we are complying with the directive and to ensure we, the Garda and others in the courts are doing-----

How is this being done? Is there ongoing assessment? I acknowledge it is relatively new.

Mr. Barry Donoghue

Some parts of it are new but others are not. That a victim can seek a review of a decision not to prosecute is a long-standing practice of our office, going back many years. A victim has always had the right to seek a review. What this has done is make it clear to victims in every case. I will explain the process briefly. When we issue a direction to the Garda stating we will not prosecute a case we enclose a short form to be given to the victim that allows him or her to ask for reasons and, ultimately, to seek a review. There is a process in place to ensure victims in every case know of their rights to seek-----

Sergeant McCabe's case springs to mind, when reasons were given but not communicated well, which had nothing to do with the Office of the DPP.

Mr. Barry Donoghue

It is always a challenge. Communication is key in all of this, so that victims do understand-----

My question is on how the office is coping with this challenge. What processes does it have in place to ensure it is working? What additional resources, if any, does it need?

Mr. Barry Donoghue

We have obtained some extra resources-----

What did the office get?

Mr. Barry Donoghue

-----and we may be looking for more.

Okay but what extra resources did the office get?

Mr. Barry Donoghue

We got some extra lawyers from the Department of Public Expenditure and Reform and that-----

Mr. Barry Donoghue

It was two or three. I cannot recall. We sought the resources back in-----

Mr. Donoghue might confirm that.

Mr. Barry Donoghue

I can certainly provide the details. We looked for an extra senior post to lead the unit, part of which deals with victims. We recently filled the post and that was a big change.

When did that happen?

Mr. Barry Donoghue

It was filled last year. It was something we looked for earlier but it did not come immediately. It came through and it is an important part of the process.

I am reading that the legal staff complement recently increased from two to three lawyers. What is the capacity required by the office? Does Mr. Donoghue understand the point I am making?

Mr. Barry Donoghue

The victims' unit does not do all of the work because dealing with the victims' directive applies in every court case. All of the solicitors in the solicitors' division, led by Ms Kiely, must be up to speed on victims' rights.

Mr. Barry Donoghue

There is a lot of training involved, which is essential. The Garda and the Courts Service-----

Is the training ongoing?

Mr. Barry Donoghue

It is, yes.

Mr. Barry Donoghue

Will Mr. Donoghue elaborate on the training?

Ms Helena Kiely

I was involved in establishing the unit in July 2015. We did a lot of training with superintendents throughout the country. We did a number of sessions in Templemore so gardaí were aware of their obligations. We do ongoing training with State solicitors throughout the country. This year we will do four sessions with prosecution counsels and State solicitors to examine certain aspects.

In the court system, there are reasons and reviews but we have rights with regard to the assessment of victims and their vulnerability. A lot of the training we will do this year will be on ensuring vulnerable victims are assessed at an appropriate time and supports for giving evidence are put in place in the courts. They may have learning or speech difficulties or other difficulties. We have done an element of training with State solicitors. At a conference 18 months ago, a speech and language therapist spoke to the prosecutors in our office and to State solicitors about language difficulties. Last week, at a State solicitors' conference, a talk was given to all of our prosecutors on how to assess victims.

There is ongoing training in conjunction with the Garda protective services tasked with dealing with vulnerable clients throughout the country, in particular victims of sexual and domestic violence. We do quite a bit of work with them. They are establishing specialist units throughout Ireland to improve-----

How many have been established?

Ms Helena Kiely

I cannot speak for the Garda but I know two were established in Dublin and one each in Cork and Dundalk. There is a plan to open four more this year-----

Ms Helena Kiely

To roll them out.

Specialist units throughout the country.

Ms Helena Kiely

Yes. The Garda would speak on this better. We have ongoing liaison on it. The European Commission will look at this. I believe it will do an assessment at the end of this year on victims and it will seek statistics from Ireland generally across the board-----

Will there be feedback into that system?

Ms Helena Kiely

Yes, there will be feedback on training and compliance with the Act later in the year.

A wide range of services is being provided. I will zone in on commercial. Did the office give advice on the children's hospital? From where did the advice come? Did it fall under the remit of the witnesses? Were they involved in the children's hospital project at any stage?

Mr. Damien Moloney

I suppose I should take this question given the fact the Office of the Attorney General advises-----

I am trying to find out what Department-----

Mr. Damien Moloney

The Deputy knows the client Department was the Department of Health. Where advice is sought on a board being established for a project with specific needs, it starts with the board and not the client Department. To the extent we advise the client Department, I am not in a position to speak about it.

The Office of the Attorney General would advise any client Department on-----

Mr. Damien Moloney

The responsibilities of the Office of the Attorney General are to advise the Government. That is the constitutional mandate. This includes Departments and offices so that is where the responsibility lies.

That includes the Department of Health regarding establishing the board for the children's hospital.

Mr. Damien Moloney

It includes the Department of Health-----

Mr. Damien Moloney

I am not in a position to talk about what the Department and the board do.

An issue that comes up regularly is directors on boards coming from a Department or being public interest directors. They are not public interest directors because once they go on the board, they report back. Their fiduciary duty is to the board. Is this something the office has thought about with regard to how we protect public interest generally?

Mr. Damien Moloney

I will take the general issue rather than the specific one. The issue of the fiduciary and common law duties of directors to their boards is a commonly recognised legal issue. Both strands, the fiduciary trust duty and the common law legal duty, are of-----

Just one second because I will be stopped by the Chairman. Appointments are something that have come up repeatedly in my life and in the life of many politicians. To be local and parochial, in Galway various local authority members were appointed to a ports authority but their duty was to the authority even though they were on it as a member of the city council. This is a problem. It is a very live issue.

Mr. Damien Moloney

May I identify the issue as opposed to speaking about the specifics? Whether we are speaking about a private individual nominated by a significant shareholder to a board, or a civil servant nominated to a board-----

Mr. Damien Moloney

-----I would say that despite the public-private distinction being made, their responsibilities and the issues that arise are similar. From practice we are familiar with having civil servants on boards on occasion.

Mr. Damien Moloney

We are familiar with the practice that we have private individuals nominated to boards. It is not always the shareholders voting people onto boards. We are familiar with the idea of nominated directors.

Will Mr. Moloney use simpler language because I am trying to get my head around this with regard to nominations by an Minister to a board in any capacity? I used Galway as a parochial example. With regard to somebody who goes on a board in the public interest, I know he does not want to discuss one particular project, namely, the children's hospital, but I am asking generally whether it is something the office has looked at.

Mr. Damien Moloney

I am aware of the issue, the issue being the nominated director to a board, which creates issues about how to identify the common law and fiduciary duties that that director has to the board in circumstances where he or she has been nominated-----

When did the Office of the Attorney General start looking at this as an issue?

Mr. Damien Moloney

Well, in my personal experience, I did a dissertation on it in a paper for a course in UCD and I am familiar with it as a general issue. It has been around for a long time, this issue.

Does Mr. Moloney see it as an issue that should be elaborated on within his office in terms of advice to a Government? Very often, we are told a person has been nominated by the Government. Has Mr. Moloney thought about what role that person has or how he or she can best fulfil that role in the public interest, no matter whether it is the board of the national children's hospital or some other board?

Mr. Damien Moloney

I agree that it is an interesting issue and it is one that is regularly looked at by Government.

It is a lot more than an interesting issue because the Committee of Public Accounts looks at value for money, governance and reporting mechanisms so that we know that the public purse is protected.

Mr. Damien Moloney

I cannot comment on the policy point. The reason we have directors on boards, be that a nominee, private sector shareholder or the State, is because there is a value in that, but that value is hard to define because of the obligations of the director to the board as well as to the shareholder, leaving the director in a very difficult situation. I would imagine, for any director in that situation, there are challenges. We see value in it as well so there remain civil servants on boards.

It is a huge issue that should be considered by the Office of the Attorney General in terms of how to protect the public purse and have a process of accountability.

Mr. Damien Moloney

Again, Deputy, I am happy to engage with the issue at a high level of principle. My responsibilities, in turning up today, are about the general administration of the office. Clearly, the issue of directors on boards, and the advice and instruction that might be needed around it, is a wider policy issue that I am not at liberty to comment on.

No, but the Office of the Attorney General is the legal adviser to the Government and gives a huge range of advice on all sorts of things ranging from commercial contracts to procurement and so on. Is that right?

Mr. Damien Moloney

The Deputy raises an interesting issue.

"The Deputy raises an interesting issue" brings to mind "Yes, Minister". Go raibh míle maith agat.

I wish to pick up on something that was raised earlier by Teachta Connolly. Mr. Moloney, referenced challenges in his opening statement and cited the legislative programme as an issue that has added to the workload of his office. Please talk me through that. There is a constitutional provision that the office can only give advice to Government. I mean the role of the Attorney General is to formulate advice on the provisions of a Bill and advice in terms of drafting Bills. Is that the constitutional position? Is that what Mr. Moloney was saying?

Mr. Damien Moloney

The constitutional position is that the Attorney General is the adviser to the Government in all matters of law and opinion. The drafting of legislation, and the provision of legislation, I would say, is included in the scriptor advice.

Good. That is why I want Mr. Moloney to talk me through exactly what he does and his role. He said "both in the formulation of advice on legislative provisions as well as their actual drafting". What is the specific role of the Office of the Attorney General in those areas?

Mr. Damien Moloney

The Department provides instructions around policy initiatives that it wishes to develop. In a way, the Government is Departments and their Ministers. So the Attorney, in a way, in his constitutional role advises the Minister, when the Minister has a glint of an idea in his or her head.

At what stage does that happen? Is it at a stage before any work is done on the Bill? Would it be like heads of Bill? At what point does the Office of the Attorney General come into it?

Mr. Damien Moloney

Our office-----

Is it before, during and after?

Mr. Damien Moloney

Yes. Our office becomes involved when it is an idea in the Minister's head that is reflected, by the Department, in a draft general scheme and our office gets to advise on the legal issues that are raised.

If an idea comes into a Minister's head and he or she says he or she wants it to become a Bill, is it at that point that the office becomes involved?

Mr. Damien Moloney

It would be because the Minister, through the Department, will seek advice.

Mr. Damien Moloney

My point is that it is not Government policy at that point. It is an idea of the Minister's.

I understand that.

Mr. Damien Moloney

So the Attorney's responsibility there is to advise the Minister.

Which is why I have specifically asked Mr. Moloney to outline the role of his office.

Mr. Damien Moloney

The role there is to advise the Minister and the Department on policy options that the Minister is considering. Then there is another role when the Minister brings his proposal to Government seeking for it to become Government policy.

I have that. Who-----

Mr. Damien Moloney

The Minister advises Government.

When the Bill is then drafted, is the Office of the Attorney General given copies of the Bill-----

Mr. Damien Moloney

We are given copies.

-----to give advice on the Bill itself?

Mr. Damien Moloney

We are brought in to advise, formally, in any instance where the Minister seeks, or intends to seek, a decision of the Government to draft-----

That is only at their discretion. The Office of the Attorney General does not have an automatic role.

Mr. Damien Moloney

No, that is Cabinet handbook procedures. That is a trigger for the Department to come and seek legal advice, if it has not done so already, on ideas around policy that it is formulating. That is the earliest we would get to see it. Then the drafters, once there is a decision to draft, will commence drafting.

Mr. Moloney said in his opening statement that the workload of his office has increased further due to Opposition, Private Members', Bills, of which there have been 300. I take it the work of his office involves giving advice on amendments to Bills, brought forward by the Opposition, when they reach Committee Stage. Is that right?

Mr. Damien Moloney

No. I do not think they could be construed as narrowly as that. In respect of those Private Members' Bills, Governments have to form a decision at the earliest stage about their attitude to the Bill that is to be published, particularly on Second Stage. So the Government will need advice about what to do or what approach it might take.

Would that be for every Private Members' Bill?

Mr. Damien Moloney

They do not always come to us for advice on every Private Members' Bill. That must be stated.

That is what I was saying.

Mr. Damien Moloney

So it might depend on the detail in the Private-----

Mr. Moloney, that is why I am trying to understand the process. Is it the case with a Private Members' Bill that the Department or the Minister decide they may need the advice of the Attorney General and then it goes to Mr. Moloney? Does the Attorney General have to automatically give advice on every single one?

Mr. Damien Moloney

I would agree with that. My own statement would be that in many cases we would be asked for a review but that would not necessarily be the case-----

Of those 300 Private Members' Bills-----

Mr. Damien Moloney

-----in terms of process.

We are all in opposition, there is nobody from the Government here.

How many of the 300 Private Members' Bills have made it into law?

Mr. Damien Moloney

Well, again, I would have to supply the Deputy with figures. The last time I looked it was six or seven.

If only six or seven out of 300 Bills became law then what level of work was done by the office in terms of giving advice to Government?

Mr. Damien Moloney

There are six or seven-----

If only six or seven are counted.

Mr. Damien Moloney

What are we counting here, the six or seven Bills that became law or are we counting the ones that the Government took over and became Government Bills like the coroners Bill, for example? I am not sure what we are counting here. But the six or seven in their own right that became law-----

Sorry, Mr. Moloney, bear with me for one second.

Mr. Damien Moloney

Yes, sorry.

I am reading from Mr. Moloney's opening statement. If I am missing anything, feel free to correct me if I am wrong.

Mr. Damien Moloney

I have not mentioned the number of private Bills passed in my opening statement but if I have I will certainly check.

Mr. Moloney mentioned that in his response to a question that I asked. What he references, in his opening statement, is the 300 Private Members' Bills.

Mr. Damien Moloney

Yes, that is the volume of work.

Mr. Damien Moloney

Yes

Mr. Moloney has said that as part of his increasing workload that he has to give advice to Government on some of those Bills.

Mr. Damien Moloney

Yes.

Giving that advice does not happen automatically, it only happens for some of those Bills and, primarily, when they get to Committee Stage. I asked Mr. Moloney how many of the 300 Private Members' Bills had made it into law and he said it was six. If the number is more than that because the Government took some of those Bills and made them their own then that is fine. If Mr. Moloney lumps that in as well, how many of the 300 Bills have made it into law?

Mr. Damien Moloney

Yes, I do not have that figure to hand and I am not sure that my office would; the Houses of the Oireachtas, I imagine, would be a better source for that information.

I am trying to understand the workload. One of the issues for the Opposition is that most of their Bills do not go anywhere and are stuck. Who advises on attaching a money Bill to those Bills? Is it the Office of the Attorney General?

Mr. Damien Moloney

The actual decision about a money Bill, under the Constitution, is that of Government, albeit that the money Bill, technically, is signed by the Taoiseach.

Would the Office of the Attorney General give advice on that? Is that one of the areas where the Office of the Attorney General would give advice?

Mr. Damien Moloney

As I understand it, as a matter of course, the Department of Public Expenditure and Reform would be consulted, along with the Department of the Taoiseach and on occasion - I am not saying on every occasion - we would be asked for advice in terms of a process. As with all advice one does not have to be asked for advice on everything.

I do not want to ask the witness to provide any information-----

Mr. Damien Moloney

I will not be providing any information about when I give advice or do not give advice.

Mr. Damien Moloney

That is fine.

Wait until I ask the question. I do not want to ask Mr. Moloney to do something he cannot. If there are 300 Private Members' Bills in which the office has had some role, could the witness at least provide us with the information on how many Bills the office has given advice?

Mr. Damien Moloney

I am sorry but I am not in a position to provide advice or details about the advice I give. I can certainly discuss the process with the Deputies, as I have been doing.

I am not sure if I am being unclear. I thought I was very clear that I was not asking for what advice the office gave.

Mr. Damien Moloney

The Deputy wants to know the number of times I gave advice but it is not within my capacity to give that information to him because it is not general administration.

The witness was able to give a figure of 300. He stated there were over 300 Private Members' Bills-----

Mr. Damien Moloney

It is a publicly stated piece of information that there are, as I understand it, 300-----

Never mind the advice the advice given by Mr. Moloney's office, which is fair enough, as it is advice to the Government. The witness is not even able to tell us in broad terms how many of those 300 Bills had any involvement of the Office of the Attorney General.

Mr. Damien Moloney

That is in the same way as if I advised the Deputy in a private capacity, I would not tell other people how many times I advised him.

Okay. I find that extraordinary. It is part of the problem as we in the Opposition come up against advice given by the Office of the Attorney General. That is the position.

Teachta Connolly dealt with an issue in Mr. Donoghue's opening statement. He spoke about the largest single area of the €40.9 million cost being €16.4 million arising from the fees paid to counsel who prosecute cases on behalf of the director. He states the establishment of the new Court of Appeal in 2014 and the Special Criminal Court in 2015 have contributed to a steady rise in fees in counsel expenditure in recent years. Is the increased expenditure down to an increase in volume, in cost to counsel or both?

Mr. Barry Donoghue

It is primarily down to the increase in the number of cases being dealt with by the courts. In other words, a lengthy trial will cost much money and some of these cases are quite lengthy. If the Special Criminal Court is dealing with lengthy cases and there are two courts sitting, there would simply be a greater volume of cases going through the courts. Similarly, if there is an extra one or two judges sitting in the Central Criminal Court, the throughput of cases is just higher. That is the primary reason for the increase in fees.

Okay. Has there been an increase in counsel fees as well? What cost controls are in place to ensure we get value for money with counsel fees? The witness indicated the single largest area of cost was €16.4 million arising from fees paid to counsel to prosecute cases. How are those fees determined and what cost control mechanisms are in place to ensure we manage those costs?

Mr. Barry Donoghue

Most of the fees we pay to counsel are what we call standard fees. They have been set over the years and they are available as published figures.

Who sets the standard fee and on what is it based?

Mr. Barry Donoghue

We set the standard fee and it is an assessment by us as to what is appropriate.

That is what I am talking about. With respect to cost controls, a standard fee is set and then there is an assessment process. How is the fee assessed and what is the cost control process?

Mr. Barry Donoghue

As I said, most of the fees are standard and they have been set on the basis of what is a reasonable fee for the case. If it goes outside that, a senior person in the office would assess the higher fee, if necessary. If it goes beyond that, we must seek sanction from the Department of Public Expenditure and Reform for a higher fee. There are limits beyond which we must seek sanction from the Department of Public Expenditure and Reform.

Are those standard fees based on a day's work, per case or research? On what are they based?

Mr. Barry Donoghue

On the first day of an ordinary case, counsel is paid a brief fee, representing the first day on the case and the preparatory work that must be put in. The standard fee for a murder case is just over €7,000 for senior counsel. That would involve all the preparation work that counsel would have to put into that case and the first day of the case. With respect to value for money, those fees have been cut heavily as part of the general cutting of fees. They were reduced on two occasions by 8%. An additional 10% was taken off those fees across the board in 2011. The Bar Council has made a reasonable case that the 10% cut was not reflected in other cuts to professional fees and so forth. The fees have been cut back quite a bit. The increase in fees reflects the throughput of cases in the courts because of more court sittings and more cases being processed.

Will the witness provide the committee with some further breakdown of those standard fees? Will he give us some history of how they have decreased, as he mentioned cuts, or increased in some areas?

Mr. Barry Donoghue

Yes.

We can have a look at the standard fees now and compare them with levels two years, five years and ten years ago.

Mr. Barry Donoghue

Certainly.

Could we get some more information on the cost control element?

Mr. Barry Donoghue

We can certainly provide that.

I have a question and I probably will not get an answer because it may be inappropriate. An office advises on various commercial activities and contracts, including the children's hospital. Is that right? Would projects of that nature go before some of the witnesses for advice with respect to tender, procurement and contracts?

Mr. Damien Moloney

That must be directed towards me.

I am sorry, I should have said it was a question for Mr. Moloney.

Mr. Damien Moloney

I thought the Deputy was looking at Mr. Donoghue.

I was just thinking about something I will speak to later but I just wanted to ask the question before I left.

Mr. Damien Moloney

No offence taken. I withdraw from the specifics of the question but say that this office advises Departments on ranges of matters. Depending on how appropriate it would be, given our level of commercial expertise, it would include commercial matters. Deputies should bear in mind that with commercial matters, a bit like complicated specialist fields in which particular firms engage in that we would not necessarily, as a process point that advice is not always internal to the Office of the Attorney General. We would not necessarily have some of the skill sets to the degree required for certain things.

I have a few general questions. How would we find out the total in legal fees paid to counsel and solicitors by Departments? Would the witnesses know it? I am talking about all commercial and prosecution services. What is the total amount spent through voted expenditure on legal fees?

Mr. Damien Moloney

There are four offices here today but with respect to the three offices on the side of the Attorney General, we could certainly give a figure for what we spend. Departments might also contract in expertise in particular matters, and they do. We do not have the figures available to us for Departments and what they do.

Okay. I understand. How would this Parliament's Committee of Public Accounts go about getting that figure?

Mr. Damien Moloney

It would ask each Department-----

The cost of legal fees.

Mr. Damien Moloney

If the question is how much do Departments and offices spend, the committee would ask each Department and office that question. In our case we could certainly answer for the three constituent offices of the Office of the Attorney General. That is as much as I would say.

Has the Comptroller and Auditor General ever looked at this or how would we go about putting a full figure on it?

Mr. Seamus McCarthy

It would be a question of gathering information.

That would come from each Department.

Mr. Seamus McCarthy

In most appropriation accounts there would be a subhead in the administration area dealing with legal expenses. Some of that would perhaps be where a case was lost and there would be recoupment through the State Claims Agency and so on. In general, the costs on the State side are paid through the Office of the Chief State Solicitor.

What about the State Claims Agency?

Mr. Seamus McCarthy

Where there might be legal advice on very specific matters, such as a contract, there may be additional legal expenses incurred by Departments. It would be a job of assembly of information and questioning of individual Departments.

One could start by way of parliamentary questions, PQs, or whatever else. That is another day's work.

We have had key legal offices here. Who else can prosecute a person or an entity in the Irish courts other than whomever is impacted, from the State's point of view? I am not talking about private litigation.

Mr. Barry Donoghue

There are a whole range of agencies, a surprisingly large number, that can prosecute.

I can think of a few. That is why I ask.

Mr. Barry Donoghue

We were looking at the implication of data protection for our side in dealing with law enforcement, and the number of agencies that can prosecute under legislation and subsidiary legislation is quite large. Many summary offences can be prosecuted by a number of agencies. I do not know the precise number but I would say it is quite large. Any case in the District Court can be taken by a Minister or an agency entitled to prosecute.

It could be a local fisheries board if someone is fishing where he or she should not be.

Mr. Barry Donoghue

Yes, exactly.

I am thinking about the Office of the Director of Public Prosecutions or the Criminal Assets Bureau, CAB, or some of these others bodies. We will start with national agencies like that. Can those two organisations prosecute directly?

Mr. Barry Donoghue

Which two agencies?

I mentioned the Office of the Director of Corporate Enforcement.

Mr. Barry Donoghue

Yes, it can prosecute summary cases itself. It is given the power to prosecute summarily.

The Office of the Director of Public Prosecutions has looked at this issue. Does Mr. Donoghue have a list he could give us? From the point of view of the Committee of Public Accounts, it might be useful that there be a level of subsidiarity such that things can be done at local level. Could Mr. Donoghue give us an overall picture in this regard?

Mr. Barry Donoghue

I know that when the Department of Justice and Equality was drafting the Data Protection Act it looked at this and, I think, pulled together a list. It may not be comprehensive, but if we have it we can certainly supply it to the committee.

Will the Office of the Director of Public Prosecutions give us its best stab at it?

Mr. Barry Donoghue

Yes.

We will ask the office to send that to the committee.

Mr. Barry Donoghue

Certainly.

Then we see the scale of what is involved, or the number of cases, that is, legal fees paid by the State. We must fish around, as they say. Perhaps the witnesses will help us with others who have legal powers to prosecute in their own right.

The next question I want to ask Mr. Donoghue I will put simply. I am looking at the DPP's annual report. There is lots of good information in it, and I know that An Garda Síochána does a lot of prosecution work in the District Court. I think it is mentioned somewhere in the report that this issue was being looked at, or there is some reference to it. What was the reference?

Mr. Barry Donoghue

Yes. The Commission on the Future of Policing's report in a short passage recommended that essentially gardaí be pulled out of criminal cases in the District Court and that some other system be put in their place, either a national prosecution service or an extended State solicitor service. It is a very short passage, and teasing it out would be difficult. It might be of interest to the committee that when this was looked at 20 years or so ago by the Nally group, it said 400 more lawyers would be needed to replace gardaí in the courts, so it does not come at no cost.

The reason I hone in on this is that at a previous Committee of Public Accounts meeting - it might have been with the Department of Justice and Equality on the Garda Síochána Vote - we remarked that, say, an inspector could in any district have 40 cases a day before him and have ten private solicitors. I think we understood that that inspector gets an additional allowance of something like €5,000 a year for doing court prosecutions. The Committee of Public Accounts members on the day were amazed by the outstanding value for money. We felt that if those thousands of cases that are dealt with for a minimal cost of €5,000 per prosecuting inspector, as the case may be, in a number of courts around the country, they would cost multiples of multiples of that if there were to be a State agency or legal people doing the prosecution. In all my time here it seemed the best value for money the State had achieved in anything. From the point of view of the Committee of Public Accounts, then, we would want a costing on that.

Mr. Barry Donoghue

Yes.

It is a beautiful proposal to free up the gardaí from going into court to do prosecutions, but I think the costs to the State could be phenomenal if we were to replace the current system. I have no scientific evidence for this claim but I think the cost of what they are being paid relative to what it could otherwise be is very minimal.

Turning to the number of prosecutions received, the volume of work, the throughput, the cost and the staff, I am looking at chapter 2.1, page 14, of the DPP's annual report. Mr. Donoghue will be familiar with the report.

Mr. Barry Donoghue

Yes.

It is the DPP's Annual Report 2017. It looks as if the number of cases, "Total Prosecution Files Received", in the DPP's office has been declining. It was 13,666 last year but was up at 15,000 and 16,000 six, seven and eight years ago. There seems to be a reduction.

Mr. Barry Donoghue

Yes.

Is there less crime out there or-----

Mr. Barry Donoghue

I do not think there is less crime, but-----

I ask Mr. Donoghue to explain this decrease to me.

Mr. Barry Donoghue

Partly, as far as we can gauge, I think it is caused by two factors. First, I think that when there was a reduction in the number of gardaí on the beat, there were simply fewer cases going to court. This is reflected in the cases coming to us. Also-----

I ask Mr. Donoghue to say that again because the public will be amazed that the reduction in the number of gardaí led to fewer prosecutions. Does Mr. Donoghue feel there is-----

Mr. Barry Donoghue

I think that will be reflected in the Courts Service's figures as well. If there are fewer gardaí on the beat, there will be fewer public order cases coming-----

There is a real connection there.

Mr. Barry Donoghue

Yes. The second thing I will say is that during that period we-----

People often think that to be the case but Mr. Donoghue is proving it now.

Mr. Barry Donoghue

Yes.

That is great.

Mr. Barry Donoghue

During that period we delegated more cases to the Garda. In other words, most of the cases going to the District Court are dealt with by the Garda, so there is a framework of delegation. Over time, we had discussions with Garda headquarters and we delegated more cases which we were happy it could make a decision on. During that period, therefore, we delegated more cases to the Garda so it would not have to send the files to us, and this affects the number of files coming to us.

Can Mr. Donoghue give us the details of the numbers of cases delegated? I think I read in the report that the DPP can still give instructions in the District Court. In other words, whatever happens of a Friday night, what kinds of cases used to go to the DPP's office that no longer need to go to it for prosecution in the District Court?

Mr. Barry Donoghue

This is a historical matter, so I would have to go back over the delegations and see which cases were let out and which were brought in. There was a change in the practice of letting cases out. It is called a general direction and it changes from time to time. The details are on our website. From time to time we change it and let more cases go back into the system without reference to us in discussions-----

Mr. Donoghue has no idea of the number of cases. It is 1,000, 2,000, 5,000?

Mr. Barry Donoghue

It is very hard to gauge because there are more than 200,000 cases in the District Court up and down every year, so our percentage-----

How many of them are adjournments, though?

Mr. Barry Donoghue

They are all new cases.

Ms Elizabeth Howlin

They are original summonses.

Mr. Barry Donoghue

Yes, so the number of cases coming to us is a small proportion-----

Where would we get-----

Mr. Barry Donoghue

The Courts Service figures show, I think, 220,000 summonses, new cases, in the last year we looked at going to the District Court.

Are some of those parking and traffic cases, though?

Mr. Barry Donoghue

Some of them are minor and some are not.

Do they need to come to the DPP?

Mr. Barry Donoghue

No.

To be helpful, Mr. Donoghue might send to the committee the list of cases in respect of which the DPP has delegated authority to the Garda such that they do not need to come to the DPP's office.

Mr. Barry Donoghue

Exactly. I can send that to the committee.

I am more concerned about the assaults and robberies and where there are difficulties like that. Have those cases been delegated?

Mr. Barry Donoghue

Yes. The Garda can deal with cases of assault causing harm, which is a straightforward assault charge, without reference to us.

Mr. Donoghue might-----

Mr. Barry Donoghue

I will send that material to the committee.

None of us is really a legal person.

Mr. Barry Donoghue

Of course.

I ask that Mr. Donoghue give us that so we know what is going through the DPP's office-----

Mr. Barry Donoghue

Sure.

-----versus what is going through the Garda and whether it is possible for anyone to deal with it.

I am just reading through the DPP's annual report and I see details of the main reasons for a direction not to prosecute. Really, in 80% of cases the reason is insufficient evidence.

Mr. Barry Donoghue

Yes.

That is the most common reason the DPP gives for not prosecuting. That is fair enough. One needs evidence.

I am interested in page 22, "Case Results - Prosecutions on Indictment". The conviction rate in 2014, according to page 22, if I am reading the chart right, was 77%.

Mr. Barry Donoghue

Yes.

In 2015 it was 75%, and in 2016 it was 66%. The DPP's conviction rate on indictment seems to be declining. Why is this?

Mr. Barry Donoghue

No. This is the difficulty with some of these figures. They are a snapshot in time.

Yes. They are a full year.

Mr. Barry Donoghue

Yes. Many of those cases have yet to be determined. If one were to look at those figures in perhaps a year's time or so, one would find that the conviction rate had actually increased.

Mr. Donoghue is saying the figures for 2016 are for cases just at the end of 2016, even though some of them might have been successfully convicted in 2017.

Mr. Barry Donoghue

We refer to the year in which we get the file. They are the files received in 2014, 2015 and 2016. If the Chairman looks at the figure of 26% of cases unheard in 2016, it compares to 16% and 11% in the previous two years. That amount declines and affects the conviction rate.

Has Mr. Donoghue a figure, then, for cases concluded in each of the years? That is probably the rate we are really interested in - not cases that commenced, but cases that concluded.

People are more interested in the outcome of a court case, not day one of the case.

Mr. Barry Donoghue

If the Chairman looks at the figures, the conviction rate overall is about 94%.

None of those figures would indicate a figure of anything like that.

Mr. Barry Donoghue

They are in respect of cases which are contested, as far as I can see.

This is Mr. Donoghue's annual report. I ask him to explain it to me.

Mr. Barry Donoghue

I think the conviction rate overall, including pleas of guilty, is about 94%.

Can Mr. Donoghue come back and give a reconciliation between that figure and this chart?

Mr. Barry Donoghue

Absolutely.

That chart does not give me a figure of anything like that. That is all I am saying.

Mr. Barry Donoghue

I think the number of cases that are unheard affects it. I think 11% of cases in 2014 have yet to be heard.

The fees paid to counsel are on page 51, which have been discussed. Almost half the figure, 47%, is for Circuit Court work.

Mr. Barry Donoghue

Yes.

Would that be the standard rule of thumb?

Mr. Barry Donoghue

Yes.

I see from page 62 that 60% of that would be in the Dublin District Court.

Mr. Barry Donoghue

Yes.

Quite a proportion of the legal fees paid by Mr. Donoghue's office would be at Circuit Court level in the Dublin region.

Mr. Barry Donoghue

Yes.

I have a simple question, although I do not know if the answer will be simple. What is the office's success rate in the courts? Is the conviction rate 94%? Is that at District Court level? Will Mr. Donoghue give us a breakdown of the office's success rate in the District Court, Circuit Court and so on? The office must have statistics on that.

Mr. Barry Donoghue

We do not have statistics for the District Court. To explain briefly, if we decide to prosecute somebody in the District Court, the case is usually dealt with by the Garda. It prosecutes the case and it does not give us a return necessarily in all those cases. We do not have the statistics. Our statistics are purely on indictable cases so cases in the Circuit Court, Central Criminal Court and Special Criminal Court.

In terms of the volume of cases going before the courts, Mr. Donoghue said 200,000 cases go before the District Court each year.

Mr. Barry Donoghue

It is 220,000, yes.

Approximately how many cases go before all the other courts?

Mr. Barry Donoghue

I would have to add up the figures.

What is the approximate figure?

Ms Helena Kiely

Every case starts in the District Court so even if it is a murder or a rape case, it will continue on.

It is referred on day one.

Ms Helena Kiely

The figure of 220,000 for the District Court will include cases that go on to the trial court.

We are interested in outcomes, not of individual cases but the office's overall success rate. I know everything starts in the District Court. I presume the office's success rate is quite high.

Mr. Barry Donoghue

There are two things. First, after the director's forward, there is "2017 AT A GLANCE". That is where the figure of 94% conviction on indictment comes in.

That is on page 7.

Mr. Barry Donoghue

It is immediately after-----

The mission statement.

Mr. Barry Donoghue

It is page 7. That is the 94% figure I mentioned.

Can Mr. Donoghue give us a breakdown of that in terms of the different courts?

Mr. Barry Donoghue

I can certainly do that. On page 17, under "Prosecute on Indictment", this includes all of the indictable courts and the Chairman can see the figures directed in each year. In 2017, the current year we are looking at, 3,576 cases were directed on indictment. That would include all the indictable courts - the Central Criminal Court, the Circuit Court and the Special Criminal Court.

How did Mr. Donoghue arrive at an overall conviction rate of 94% given that he said a few minutes ago that he does not have figures for what happens in the District Court?

Mr. Barry Donoghue

It says "on Indictment".

I am looking at the 94% figure on page 7.

Mr. Barry Donoghue

Yes.

That figure does not refer to all cases.

Mr. Barry Donoghue

It just refers to indictment. It is just at a glance. It is a ready reckoner.

I thought that was 95% in all courts, but that is not the case.

Mr. Barry Donoghue

I do not know if anybody has statistics about the conviction rate in the District Court.

Whether it is the Courts Service or-----

Mr. Barry Donoghue

I am not sure the Courts Service has it.

It would be a very useful statistic for the State to have.

Mr. Barry Donoghue

Absolutely, but as my colleague, Ms Kiely, said, this justice hub will be able to produce those figures automatically once all of the agencies-----

To whom did Mr. Donoghue refer?

Mr. Barry Donoghue

My colleague, Helena Kiely, was on this group looking at developing a hub with all the data coming together. That will produce the statistics we should have but do not have.

When might that be?

Ms Helena Kiely

As I mentioned, on the first two projects, it is a message exchange between different agencies. The Court Service's outcomes, which will be a conviction or an acquittal, is one of the first messages they want to put into the centre so that agencies like ours will be able to get accurate statistics at District Court, Circuit Court and Central Criminal Court levels. The project, which is called the criminal justice hub, is mirroring what is available in Northern Ireland. It is trying to automate messages from different criminal justice agencies into a central hub. They are collated so that we will have an accurate position on individual accused but also in respect of statistics, that is, the number of incidents, the number of offences directed, the number of convictions and the number of people who are likely to serve sentences this year. It will provide a statistical analysis of figures that every agency will know is accurate and can refer to going forward.

Which is the lead Department in that?

Ms Helena Kiely

The Department of Justice and Equality. It is the sponsoring Department.

Is there an indication of when that might happen? We have all heard about the trouble the Central Statistics Office, CSO, has with Garda figures. We are starting from a situation that the CSO cannot stand over. Is the CSO on this group to clarify the statistics?

Ms Helena Kiely

I know there is a statistician from the Department of Justice and Equality. There may be some engagement with the CSO that I would not know of, as just being an agency sitting on it. I know there is a statistician working on this group who is a member of the board.

I will make a suggestion to the Department of Justice and Equality. If it does not have somebody from the CSO on this group, it should get one.

Ms Helena Kiely

It may have.

If not, it should because we do not want all of this work to be done and then to find the CSO has a problem with the way it is designed. We will only believe figures when they come out of the CSO. That is all I am saying at this stage.

Ms Helena Kiely

It might be worth mentioning that one of the first projects in this hub business plan is to look at court outcomes and have an accurate assessment of outcomes because that is something all agencies are anxious would be done as a priority. In terms of the outcomes of District Court, Circuit Court, Central Criminal Court and Special Criminal Court cases-----

The committee might write to the Department of Justice and Equality to get an indicative timescale for this project. We will write separately to the Department as a result of what Ms Kiely has said.

I raise an issue that has always interested me. When somebody is prosecuted and has to engage counsel at their own cost, who pays the defence costs if the case does not stand up in court?

Mr. Barry Donoghue

It is a matter for the trial judge. The judge has the discretion to award costs against the director. There is case law on it in terms of how judges should approach that. Most cases are legally aided in the courts but where a person is not legally aided-----

By and large, there is no great means test for legal aid in the Circuit Court. There is in the District Court because if one has a bit of an income, one will not get legal aid.

Mr. Barry Donoghue

Yes, because of the cost involved in defending the case oneself. To answer the question, the trial judge will have a discretion and in some cases will order costs to be paid by the director.

In which courts?

Mr. Barry Donoghue

That will be mainly in Circuit Court cases.

That is in spite of the fact that the person may have had the benefit of free legal aid.

Mr. Barry Donoghue

No. That is only in cases where people are not legal aided. If they are on legal aid, their defence is being paid for by the taxpayer.

That is in the Circuit Court, the High Court or the Supreme Court.

Mr. Barry Donoghue

Yes.

Why would they not get legal aid in the Circuit Court, the High Court or the Supreme Court?

Mr. Barry Donoghue

Presumably, their means are such that they could not get legal aid.

Members of this House have got free legal aid in the Circuit Court because their salary was not deemed adequate to meet the costs that can be incurred in the Circuit Court. One would want to be very wealthy not to get one's costs in the Circuit Court or free legal aid. Does Mr. Donoghue know how many people are not covered by free legal aid? Who would know the answer to that question?

Mr. Seamus McCarthy

The Legal Aid Board would be where the Chairman should address that query.

That is another letter we will send to get that information. It seems to be difficult not to get it in the----

Mr. Barry Donoghue

I would say very few cases are not legally aided.

That is the picture I am trying to drag out.

Mr. Seamus McCarthy

My understanding is that the means testing is a little bit different from what it might be in, say, social protection. Account would be taken of expenses and commitments somebody would have in the determination by the court.

I have a few questions for the Office of the Attorney General. As individual Deputies, we often receive complaints about local sports club being unable to get lottery grant approval because it has been held up in the Chief State Solicitor's office. What is the story on that?

Ms Maria Browne

I will answer that because my office deals with that work. I would say that is not an accurate representation of the position because these cases are dealt with in as speedy a timeframe as possible. As the process involves the State taking charge of property, it can be the case that the title may not be complete, rectification may need to be done and the constitution of the group that is applying may not be in order. Issues can arise during the case so that would obviously prolong it. In a standard-----

Do many of these cases come before the Chief State Solicitor's office each year? There must be an indication because I am sure parliamentary questions are frequently tabled on the matter, given that grants are being paid again.

Ms Maria Browne

I have the numbers but I am not sure whether I have them to hand. I can send a copy of them to the committee.

Yes, please send them in writing in the next week. I do not need it now but it is a recurring issue.

What kind of advice is given to Government bodies on acquiring commercial leases, licences and so on? Which office does that?

Ms Maria Browne

In the cases of Departments, it is my office.

A Department might have an issue with an important transaction involving, for example, the acquisition of leasehold interests for office space. Does the Chief State Solicitor's office advise many Departments on that sort of matter, and which Departments has the office advised in that regard?

Ms Maria Browne

Primarily, if it is office accommodation, it would be the Office of Public Works, OPW, that we would advise.

The Chief State Solicitor's office provided legal advice to the OPW on the Miesian Plaza, for example, rather than the OPW procuring its own independent legal advice.

Ms Maria Browne

Yes.

Has the CSSO advised the State on the Apple case at the European Court of Justice?

Ms Maria Browne

We are handling it as an agent.

Which office handles it legally from the State's point of view?

Mr. Damien Moloney

The legal team comprises the instructing solicitors, the State legal's service, the Chief State Solicitor's office, while the advisory piece is in the Office of the Attorney General through the attorney. We are also assisted by a team of external counsel, mostly within-----

Which office is the lead in the legal case on behalf of Ireland?

Mr. Damien Moloney

I would say the Attorney General is the lead but the lead counsel is a former Attorney General, as the committee will probably know.

I do not need to know the name. I just want to know which office is leading the case.

Mr. Damien Moloney

For the purposes of the committee, I would say the Attorney General is advising the Government and directing strategy.

Does it also advise the Government in cases such as the North East Pylon Pressure Campaign limited and Anor v. An Bord Pleanála, where the case was referred to the European Court of Justice in respect of environmental proceedings?

Mr. Damien Moloney

That is another case where the Attorney General is the lead adviser.

Is the case involving a person appealing extradition to Poland because he did not regard the judiciary in Poland as independent under the remit of the Attorney General?

Mr. Damien Moloney

As the committee will be aware, that case is under appeal but again that would be the Attorney General is advising the Department in terms of process.

The Attorney General is the lead, therefore, in all the types of cases I mentioned. In that case, the office is the lead and does a substantial amount of advising of Government bodies in relation to commercial interests and those types of cases.

Mr. Damien Moloney

We do not advise commercial bodies or semi-State bodies but we certainly advise bodies under the aegis of Departments, where appropriate.

Yes, I meant that the office advises the OPW on commercial leases.

Mr. Damien Moloney

Yes, we certainly do.

One matter that has troubled the committee for the past number of years is that of the State redress scheme and the various transfers of assets from religious institutions to the HSE. Perhaps the State should call on the Attorney General's advice in that regard or perhaps it is already involved. The matter regularly appears on the committee's agenda. There were agreements in 2002 and 2009. I acknowledge that this primarily concerns the Department of Education and Skills. Some of the properties are being transferred to the HSE, while others are still caught up in the process. Approximately 15 years later, the State has been unable to complete the transfer to which it committed. We are receiving quarterly reports because we are not satisfied that it has received the attention it deserves to fulfil the commitment. Given that the Office of the Attorney General advises Departments on commercial issues, leases, trusts and so on, is it involved in this matter?

Ms Maria Browne

My office is involved in the matter. Under the first redress scheme, I believe five properties are outstanding, although we are dealing with only two of them. The other three are being taken by the HSE and we do not act for the HSE.

The Chief State Solicitor's office is advising the Department of Education and Skills only.

Ms Maria Browne

Yes. The cases are ongoing.

Yes, the committee received a report last month. Why is the office not advising the Department of Health or the HSE? Why is the advice being split?

Mr. Seamus McCarthy

The HSE has its own legal advisers.

Ms Maria Browne

Yes, and the HSE is the acquiring body. It is only if it is a Minister-----

In that case, the Chief State Solicitor's office would advise the Department of Health but not the HSE.

Ms Maria Browne

Yes.

I am a little confused because I thought the HSE is now under the remit of the Department of Health.

Mr. Seamus McCarthy

The money for the HSE goes through the health Vote, which is the Department's responsibility. Once the money is given to the HSE, however, as it is a State agency, the HSE seeks its own legal advice.

Okay. I listed those examples because it is probably no harm for people to understand some of the matters in which the Chief State Solicitor's office is involved. I identified them from its annual report and they are some of the issues I wanted to be addressed. Does Deputy O'Connell wish to contribute?

Yes. Did somebody ask about European arrest warrants and extradition in my absence?

I just mentioned a case involving Poland.

Was anything other than that discussed?

No, I did not mention anything else.

Mr. Donoghue referred to challenges in the light of Brexit. Will he elaborate on our preparedness for a no-deal scenario? How will it affect the office's relationships and its preparation to deal with prosecutions? Mr. Donoghue made reference to Brexit earlier and when I left the meeting to have a cup of coffee, I thought a bit more about it.

Mr. Damien Moloney

I should probably answer that question-----

I do not mind who answers it.

Mr. Damien Moloney

-----even though the answer may not please the committee. The policy piece in terms of responding will be the Department's. The structural piece in terms of providing the advice will, of course, involve the Office of the Attorney General. To that extent, we have processes and people in place advising.

That was a compact answer.

Mr. Damien Moloney

I wonder if I could make two points-----

I am trying to be helpful.

Mr. Damien Moloney

-----without taking the Deputy's time. The question about Garda vetting was put to the Chief State Solicitor's office but I should say the vetting process for the Office of the Attorney General, the Department of the Taoiseach and a number of other central Departments are twice as long as the six-week process which was mentioned because there are more requirements for some Departments than others, which the committee may not have been aware of.

Is that for Garda vetting?

Mr. Damien Moloney

Yes. The committee may not have been aware that there are layers of Garda vetting but there are.

Will Mr. Moloney explain that because we are not experts on the matter?

Mr. Damien Moloney

As I understand it, there are layers.

Depending on the level of responsibility.

Mr. Damien Moloney

For instance, an officer who will serve in my office will undergo a more elaborate vetting process. As a result, there is a time delay. I thought I should mention that in the interest of candour.

On prosecuting in one's own right, I should mention that I may have to move from the Office of the Attorney General but the committee may receive a list from my colleagues in the Office of the Director of Public Prosecutions. There are some legacy fishery prosecutions.

Will Mr. Donoghue elaborate on the challenges he mentioned, or has Mr. Moloney answered that question?

Mr. Damien Moloney

Is the Deputy referring to the European challenges?

Yes, Mr. Donoghue referred to challenges in his commentary. If it is helpful for the committee, will he outline some of the challenges he anticipates?

Mr. Barry Donoghue

Much is unknown about the matter and we are trying to feel our way through it. The point I was making was that we are moving from a system of extradition, with which we are familiar and which has been tried and tested with the UK since 2003 - the European arrest warrant - to something which is different. That is the challenge essentially, that we will have to deal with an entirely different system. Without being too complicated about it, if somebody is being extradited from the United Kingdom to the United States, it will be under a particular type of system. We are going to go into that same system so we will have to be assured that we know what the courts require in that different system. My main point was that the European arrest warrant was designed to be a streamlined system for Europe.

This is where the issue of alignment comes into play.

Mr. Barry Donoghue

Yes.

As I cannot see the witness's name, I cannot refer to her directly, but she referred a couple of times to the causeway system in Northern Ireland in reference to the justice hub. The Chairman mentioned the Central Statistics Office, CSO, and that we did not want to see a situation to arise where the work was done and the CSO might complain about the form the statistics took. As mentioned, the same applies to the GDPR. Can we be confident that when the justice hub is completed - I would like to hear the projected finishing date - we will not find ourselves in a situation where concerns will be raised that the enterprise is in breach of it in dealing with people's personal data? We want to make sure it is not a waste of time and money.

Ms Helena Kiely

Data protection has been a massive part of the project. While people talk about the GDPR, justice agencies operate under the law enforcement directive which is Part 5 of the Data Protection Act. Getting that right, even before the data modelling was completed, was a big part of the design. We want to ensure the protections and obligations of all of the criminal justice agencies under Part 5 of the Act and the law enforcement directive are all accounted for at a very early stage. A data protection sub-committee is working as one of a number of sub-committees under the public board. I sit on the board, while our data protection officer is a member of the data protection sub-group. Data protection agreements were in place before any data modelling was done. Therefore, any member of the technical project team would know that we were data protection compliant. The legal office is obviously in tune with data protection requirements. Much of the data we possess is sensitive and we have obligations in that respect. The data protection directive and implementation of the Act have been a big project within our office. As there was heightened awareness of the issue last year, it was very much at the forefront of our mind in starting the project to ensure the data protection aspects would be correct.

Is there a projected finishing date for the project?

Ms Helena Kiely

I am a member of the board, but I am not from the sponsoring Department. There is no finishing date as such. The system entails the development of a series of messages between agencies that in time will become more detailed. A number of projects that have to be completed very quickly have been identified, including recording court outcomes for statistical purposes and which many agencies require. We are planning to roll out that aspect in the latter part of the year. I am told by the IT and technical people that when it is rolled out, there will be near-time accuracy. In time, as we ensure the data are correct and of high quality, they will become real time data. There is a process which involves many of these projects to ensure the data will be of the correct quality.

For the information of Deputy O'Connell, we have spoken about that matter and agreed to write to the Department of Justice and Equality which is the lead Department for the project for the timetable for its completion. The agencies are only part of the group; the Department of Justice and Equality is taking the lead in dealing with the issue.

Ms Kiely mentioned sensitive data. Even if the hub is established perfectly and working in real time, it is worth noting that there have recently been data breaches within the HSE related to the termination of pregnancies. We were warned that that would probably happen; I just want to flag that there are people who are very fond of accessing everybody's information. If information in the hub was to get into the wrong hands, it would obviously be a very serious matter.

Ms Helena Kiely

We hold a lot of data, but evidence or material of that nature will not be in the hub which will contain court outcomes or charge sheets. There will be access levels in terms of those who will need to see particular information and when they will need to see it. That is an essential part of what is being agreed to. Most of the information held by every agency will not go to the centre. There will only be access to the messages people need to consume and what they generally need to know.

I thank all of the witnesses, including the staff from the Office of the Attorney General, the Office of the Director of Public Prosecution and the Office of the Chief State Solicitor, for their attendance and the material they have provided for the committee. I also thank the Comptroller and Auditor General. It is agreed that the clerk will request any follow-up information sought and carry out any agreed action. We look forward to receiving the information mentioned within the next two weeks.

Our next public meeting will be held on Thursday, 14 February, when we will meet broadband providers which will assist the committee in its examination of the 2017 appropriation accounts, specifically Vote 29 for the Department of Communication, Climate Action and the Environment. The broadband providers which will attend are BT, Eir, the Regional Internet Service Providers Association, Imagine and Enet.

The witnesses withdrew.
The committee adjourned at 4.45 p.m. until 9 a.m. on Thursday, 14 February 2019.