Select Committee on Finance, Public Expenditure and Reform, and Taoiseach debate -
Thursday, 2 Dec 2021

Vote 6 - Office of the Chief State Solicitor (Supplementary)

Vice Chairman

We have a mobile phone notice, which we have read often enough. Everybody is familiar with it now so I will not go through it again and just remind people. If people are not seated in front of a microphone then any contribution will not be recorded. For the meeting I will indicate the speakers for broadcasting purposes and relay. I welcome members and the viewers who may be listening or watching proceedings on Oireachtas TV to the public session of the select committee.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable. Parliamentary privilege is considered to apply to the utterances of members participating online in a committee meeting when their participation is from within the parliamentary precincts. For this purpose, the parliamentary precincts are considered to be the accommodation assigned to the member in the Leinster House complex or its vicinity, or another location in Leinster House or Leinster House 2000. I ask members to note that they may participate remotely in proceedings held in public only from the locations listed earlier as privilege to their utterances only applies when participating from these locations.

The Dáil has decided that the Supplementary Estimate for Public Services in respect of Vote 6 be referred to this committee for consideration. On behalf of the select committee, I welcome the Minister of State at the Department of the Taoiseach, Deputy Jack Chambers, and his officials. Briefing documents have been provided by the Department for circulation in advance. The meeting format is that the Minister of State will given an overview of the Supplementary Estimate and then the floor will then be open to questions from members.

I now invite him to make his opening statement.

Minister of State at the Department of the Taoiseach (Deputy Jack Chambers)

I am joined by my officials. I thank the committee for making time available today to consider my request for a Supplementary Estimate for the Office of the Chief State Solicitor.

As members are no doubt aware, the Office of the Chief State Solicitor is a constituent part of the Office of the Attorney General. It provides solicitor services within the Office of the Attorney General and to Departments and offices.

While the Taoiseach has certain responsibilities to the Oireachtas for administrative matters in the Office of the Chief State Solicitor, the office operates independently of the Department. The office has a wide remit, including the area of civil litigation in all courts, including attending at the Court of Justice of the European Union, ECJ, in Luxembourg, and the provision of conveyancing, property law, commercial contract and other solicitor services for the line Departments and other Civil Service clients. Many matters are high profile, sensitive, capable of attracting publicity, and sometimes involve emergency applications to court, strict time limits and complex issues of law.

A Supplementary Estimate of €3 million is sought to cover the extra expenditure of three subheads within the Vote in 2021. These subheads are: A1(i) salaries, wages and allowances; A2(v) office equipment and external IT services; and A4 - fees to counsel. While the office has managed to achieve savings of more than €500,000 elsewhere in the Vote it finds itself with a shortfall of €3 million.

I might start with the fees to counsel subhead. The management of expenditure on counsels’ fees is a key activity for the office. These are primarily fees payable to counsel representing Departments and offices in litigation before the courts and other tribunals, and the ECJ They also include fees payable for the provision by external counsel of legal advice for the State, whether sought for the Office of the Attorney General or for Departments and offices.

Expenditure on counsel fees is, to a large extent, dependent on the level of activity in the courts at any time. It is often difficult for the office to specifically forecast this. In addition, recent years have seen a marked increase in the complexity of work being handled by the office in areas such as commercial litigation and transactional work, procurement work, and advisory and litigation work that results from our membership of the EU, and the implementation of directives in areas such as environmental law, planning, employment law and social welfare law. The past two years have brought new challenges with Brexit and the emergency legislation enacted to deal with the pandemic. The office has observed that the issues raised in cases taken against the State are becoming increasingly complex, which leads to greater use of counsel.

An allocation of €15 million was made for expenditure on fees for counsel in 2021, which was the same as 2020. However, the current position shows that after the fees requested by counsel undergo a value-for-money assessment, this will leave a shortfall of €2.6 million over the allocated amount.

With regard to the office equipment and external IT services subhead, the office has incurred increased costs in the provision and support of secure remote access facilities. It has also had to upgrade video conference facilities to satisfy the requirements of the ECJ for remote hearings. The shortfall for this subhead is €213,000.

Finally, I will refer to subhead A1(i). Due to a combination of circumstances relating to the need to provide cover for staff on maternity leave, and the impact of changes to pay arrangements, the office sees a shortfall in the allocation of €772,000.

I am pleased to recommend the Supplementary Estimate to the committee and welcome the opportunity to discuss it with the Deputies.

Deputy Mairéad Farrell

Gabhaim buíochas leis an Aire Stáit as teacht os comhair an choiste. Tá sé i gcónaí iontach plé a dhéanamh ar na rudaí seo.

I apologise to the Minister of State and committee members for having to leave early as I am due to speak in the Dáil shortly. I thank him for his opening statement, which was quite interesting.

I am interested in the issue of protected disclosures or whistleblowers. I introduced my Protected Disclosures (Amendment) Bill today. Does the Minister of State have figures for the total costs the Chief State Solicitor's office has incurred from defending the State in cases arising from protected disclosures? I will put three questions to the Minister of State now. They are quite specific and he may not have the information to hand to answer them but he can come back to me on them.

I am also interested in the total expenditure on external legal fees. We had a conversation on that on the previous occasion the Minister of State appeared before this committee. I am quite shocked at how much it costs. From the perspective of fiscal prudence, would it not be more cost-effective for this work to be done in-house through the Chief State Solicitor's office? That could be a better approach. I would be interested in his thoughts on that. When other jurisdictions contract for external legal fees, a discount often appears to be offered for services. I guess that is because it is often repeat business and states are reliable suppliers, they pay on time and do not go bust. When the Irish State contracts for external legal fees, a premium appears to be charged, rather than a discount applied, for the services. I would also be interested in the Minister of State's view on that matter.

Deputy Jack Chambers

On the Deputy's first question regarding the cost of protected disclosures, I do not have that specific figure in front of me. I can ask the office whether it is even possible to obtain that figure and the specifics around it. If it is, we can send it on to the committee but I will have to engage with the officials to find out if there is a breakdown of that. Different agencies of the State are responsible for protected disclosures and, therefore, they might not all be necessarily channelled through the Chief State Solicitor’s office.

On the Deputy's point on securing value for money with respect to fees and doing that work in-house, there is significant legal expertise in the office and those staff do a great deal of case management and progress many cases. That is distinct from how it works around counsel. To give some information on that, the majority of cases the office handles are taken against the State and it is necessary for the State to defend itself against any of these cases. That can require specialist advocacy services offered by specific counsel. In some instances, they are specific counsel who are very much specialists in their area in Ireland and if Ireland is representing itself in a European context, it is important we have such specialist expertise. It can also vary. There is uncertainty with respect to demand, therefore, it can be difficult to predict the work and cases can often take years to conclude. Another aspect is the increasingly challenging and complex nature of case management and the nature of discovery, and the cost involved in that.

The Deputy also asked about fees. In terms of fee note processing, there is an evaluation process that involves a minimum of two and a maximum of seven legal officers, including legal officers in the Office of the Attorney General. They are processed through use of guidelines and oversight. There is a professional fees control group within the Chief State Solicitor's office that ensures value for money and fairness in the service provided, ensuring there is consistency across all work and managing the spend in the context of the budget. There is a marked-down rate, which is approximately 33%. Obviously, that is an estimate but there is a marked-down rate when it comes to counsel. If the Deputy were to compare what we are allocating under the subhead covering fees to counsel this year versus, say, 2019, it is less. It is subject to fluctuation. It can depend on the nature of the case that is taken. There is a Supplementary Estimate and this is one of the subheads involved. If the Deputy notes the trend over a period of years, a greater amount was allocated under that in 2019.

Deputy Mairéad Farrell

I thank the Minister of State for his response. Unfortunately, those are the only questions I have time to ask because I have to leave to speak in the Chamber. My apologies for having to leave the committee early.

Vice Chairman

I have one or two questions. I recognise the additional responsibilities cast upon the Chief State Solicitor's office arising from Brexit. To what extent has that office been adequately staffed to meet the challenges of issues associated with Brexit?

Deputy Jack Chambers

I ask the Deputy to bear with me while I get the detail on that. With regard to the staffing of the office generally, we can get a specific note on staffing as it relates to Brexit. One of the predominant issues, as I referenced in reply to Deputy Farrell, when it comes to cost implications for the Chief State Solicitor's office is the multi-annual nature of the work, the interface with the European legal system and how case management can take many years. From a commercial case management perspective, it can involve complex work over a number of years. There is ongoing engagement between the office and the Department of Public Expenditure and Reform, and a substantial increase was secured for 2022. Two elements occurred this year that were a positive for capturing staff recruitment and retention. One relates to maternity leave cover where staff going on maternity leave can be replaced immediately or within a reasonable timeframe. There has been budgetary allocation for that and all of that has allowed for good continuity of work. There has also been an incremental credit and that has also had an important impact on the continuity of work.

On managing Brexit more generally, the feedback we have received is that it is part of the regular work. The Chief State Solicitor's office's work cuts across Departments and all issues. The office has in excess of 300 staff. As I said, there is a significant increase there for next year. That is the feedback on it.

Vice Chairman

Is the information technology, IT, in the relevant offices proofed against an attack or hacking and sufficiently modernised to ensure private documentation does not get into the hands of people who might have a reason to target it and to use it for their own benefit?

Deputy Jack Chambers

On technology, under subhead A2, there is an emphasis on that and in the Supplementary Estimate. If the Vice Chairman notes the new projects in 2021, he will see a large of portion of the ICT budget has been to facilitate and implement secure remote working access for all staff. That has allowed for a significant level of remote working but also ensured that it is secure. Having additional licensing and support to promote access and videoconference solutions has also been added to the IT cost. I am informed by officials that the security is up to date and it was also enhanced fully this year. That is the feedback from a security perspective.

Vice Chairman

I notice a reference to external IT services. How secured are the eternal IT services? Are they adequately and equally secured with respect to the internal services?

Deputy Jack Chambers

I am informed by my officials that external IT relates to any of the external consultants. In terms of the internal workings of the ICT budget, as I said it is implementing its own ICT system that, I am informed, is secure.

Vice Chairman

Have any issues been brought to the attention of the Minister of State that might need further evaluation as time goes by, with a view to ascertaining the extent to which the office remains adequately staffed and equipped to meet the challenges ahead which, as he said at the outset, will be greater as a result of Brexit and the need to engage at European and UK level to a greater extent?

Deputy Jack Chambers

As I said, there was positive engagement with the Department of Public Expenditure and Reform and a substantial increase in the 2022 Revised Estimates to cover general payroll, administration and fees. This was something that was progressed in the Revised Estimates which will be published in December. As I said, there is a staff count of over 300. The increase for next year will have a positive impact on the work and capacity of the Department to manage the caseload. That is something that is kept under review to ensure work can be progressed adequately.

Vice Chairman

I thank the Minister of State. Has it been possible to continue virtually uninterrupted throughout lockdown? Has working from home or whatever created difficulties? Has it been possible to meet those difficulties and continue on to the best extent possible?

Deputy Jack Chambers

I am informed that staff have been able to work from home in line with Government regulations. For example, facilities have been set up to allow legal staff access to virtual court hearings in Ireland and the Court of Justice of the European Union. In the initial phase of the pandemic, a lot of public services and people across the private sector had to transition quickly to meet the challenge brought about by Covid. There is ongoing additional licensing and support for remote access. Video conference solutions have supported the IT investment in 2021. A lot of the additional allocation for this year has sought to facilitate secure remote access to allow continuity of work. There has been a proactive management of that in order to manage the transition while also mitigating the costs so that this is balanced properly. I am informed that it has worked well since remote working commenced.

Vice Chairman

I thank the Minister of State. Do members have any other questions or requests? There are no further questions. Deputy Mairéad Farrell referred to a couple of outstanding issues which the Minister of State may refer to in correspondence.