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Office of the Attorney General.

Dáil Éireann Debate, Wednesday - 1 November 2006

Wednesday, 1 November 2006

Questions (8, 9, 10, 11, 12, 13, 14, 15)

Pat Rabbitte


1 Mr. Rabbitte asked the Taoiseach if he will make a statement in regard to the Sullivan report on events in the Office of the Attorney General leading up to the A case. [28238/06]

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Pat Rabbitte


2 Mr. Rabbitte asked the Taoiseach the progress made to date with regard to the implementation of the recommendations contained in the Sullivan report; and if he will make a statement on the matter. [28239/06]

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Pat Rabbitte


3 Mr. Rabbitte asked the Taoiseach when he expects to receive the first report of the three-person panel of experts to advise upon and review, twice yearly, risk management procedures within the Office of Attorney General; and if he will make a statement on the matter. [28372/06]

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Trevor Sargent


4 Mr. Sargent asked the Taoiseach if he will report on the work of the Attorney General’s office; and if he will make a statement on the matter. [30648/06]

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Trevor Sargent


5 Mr. Sargent asked the Taoiseach if he will report on the implementation of the Sullivan report; and if he will make a statement on the matter. [30649/06]

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Enda Kenny


6 Mr. Kenny asked the Taoiseach the number of recommendations for the Sullivan report regarding the Office of the Attorney General which have been implemented to date; and if he will make a statement on the matter. [30784/06]

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Caoimhghín Ó Caoláin


7 Caoimhghín Ó Caoláin asked the Taoiseach if he will report on the work of the Attorney General’s office, including implementation of the Sullivan report; and if he will make a statement on the matter. [34472/06]

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Joe Higgins


8 Mr. J. Higgins asked the Taoiseach if he will report on the implementation of the recommendations made in the Sullivan report. [35923/06]

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Oral answers (21 contributions) (Question to Taoiseach)

I propose to take Questions Nos. 1 to 8, inclusive, together.

The four principal legal functions carried out by the Office of the Attorney General are summarised in paragraph 2.3 of the Sullivan report as (i) the provision of legal advice — advisory counsel; (ii) legislative drafting — Parliamentary Counsel; (iii) the processing of litigation; and (iv) conveyancing and other transactional services, the Chief State's Solicitor's Office, CSSO.

The report on the Sullivan review of the Office of the Attorney General, submitted in June 2006, contained 19 recommendations, the final one being that the director general should keep the implementation and operation of the new measures under review. The report also provided that the first such review is to be completed within six months. Substantial progress has been made already in implementing the recommendations.

To assist the director general, the office put in place an action plan which is regularly monitored by a review working group comprising officials of the Office of the Attorney General and the Office of the Chief State Solicitor. The three-person panel of external experts, appointed by the Attorney General to review risk management procedures within the office, has had two meetings with the Attorney General, the director general and the deputy director general. The panel members have been supplied with relevant material to enable them to familiarise themselves with the internal procedures and protocols of the office together with relevant office publications, risk management policy and a risk register. The panel has also met and plans to meet soon with the Chief State Solicitor and the office audit committee. The panel members will also be reviewing the processes involved in dealing with files in the office.

New enhanced procedures in regard to sensitive files were put in place at the end of July, placed on the office intranet and all advisory counsel notified. These procedures will be reviewed in the light of experience.

The office implemented a procedure to consult with and brief relevant Departments to ensure that they develop an appropriate containment strategy for each risk identified. The office prepared and reviewed status reports as to all cases pointing where legislation is being constitutionally challenged. The office's risk assessment policy and risk register were addressed in the office's statement of strategy 2006-08 which was published in July and the register is being reviewed in the context of new business plans.

Protocols have been put in place to ensure the effective handover of responsibilities to new group co-ordinators within the advisory side of the office. Five advisory counsel grade II have been designated to undertake specific responsibility for risk assessment as envisaged in the Sullivan report.

Written reports are now submitted by each advisory counsel grade I to the weekly review meeting and a new legal management committee has been established. The committee which includes the Attorney General, senior officials of the advisory and drafting sides of the Office of the Attorney General and senior officials of the Office of the Chief State Solicitor had its inaugural meeting on 11 October and will meet again in November and thereafter every two months.

Considerable work has been undertaken in regard to development of IT systems to support the management of sensitive cases. Existing systems have already been modified while the new systems being developed will have the necessary functionality. Recommended changes to the office's intranet have also been implemented. The Office has formulated and agreed procedures for mentoring for new advisory counsel, including a general checklist of milestones for litigation cases.

Six advisory counsel grade III have been recruited by the office for training prior to secondment to Departments. The first two secondments — to the Departments of the Environment, Heritage and Local Government and Education and Science — took place on 2 and 9 October, respectively. Further secondments will follow in coming months.

Discussions have taken place between the office and the Office of the Director of Public Prosecutions about the transfer of responsibility for fisheries prosecutions to that office. Discussions have also taken place between the office and the Chief State Solicitor's office with the Department of Justice, Equality and Law Reform on the transfer of the administration of the Attorney General's scheme.

Formal protocols to ensure that all pleadings and submissions in constitutional and sensitive cases are approved by the Attorney General and confirmed by the director general via the Chief State Solicitor, with notification to Departments and the Secretary General to the Government, were put in place in the measures introduced in August relating to sensitive cases.

Two meetings have taken place between officials of the Office of the Attorney General and the Office of the Director of Public Prosecutions to review and assess the effect, if any, on the general enforcement of the criminal law of any constitutional challenges. The results of these meetings have been conveyed to the relevant line Departments and to the Secretary General to the Government. A memorandum for the information of the Government will be submitted at regular intervals giving an update on important litigation being handled by the relevant offices.

The action plan also includes monitoring of the new procedures proposed by the Attorney General which are appended to the Sullivan report. The director general of the Office of the Attorney General hosted a conference on 6 October 2006, attended by representatives from the Attorney General's office, the Chief State Solicitor's office, CSSO, the Courts Service, the Director of Public Prosecutions' office, the Chief Prosecution Solicitor's office and the Department of Justice, Equality and Law Reform to discuss channels of communication between all stakeholders in serious litigation cases. At the conference, certain action points were agreed as follows. The office, in consultation with the CSSO, the Director of Public Prosecutions office, DPPO, and the Revenue Solicitor's Office, RSO, would draft and publish a practice note in the Law Society Gazette outlining service requirements for State offices and that counsel would also be made aware of the practice note; the office, the CSSO and the PPO will make contact with the president of the High Court on difficulties caused by the late filing of written submissions in serious litigation cases; and the participating offices will jointly develop a protocol to ensure prompt communication and co-operation between the offices.

I thank the Taoiseach for an unusually comprehensive reply. It will bear reading. As he is aware, the Sullivan report listed seven different stages at which the Attorney General himself ought to have been briefed on the statutory rape issue. It only happened at one stage, namely, the initial stage of briefing counsel. We know the issues that derived from that. It is not a question of whether the case might have been defended differently. The issue is that the Attorney General is the law officer to the Government who is personally in attendance at Cabinet meetings and ought to be in a position on matters of legal, constitutional or public interest to advise the Government in that capacity.

The best way to question the Taoiseach on this matter is to ask him whether he is satisfied that adequate procedures are now in place to ensure the State cannot be taken unawares by a judgment of the Supreme Court in a case of the gravity of the statutory rape case. Will the Taoiseach indicate whether any of the key recommendations of the Sullivan report have not been implemented or whether a decision has been taken to exclude any one of the key recommendations and, if so, why?

Deputy Rabbitte correctly pointed to what happened in that case and what the Sullivan report recommended. The relevant parties accept the CC case met the criteria of being an "important and sensitive" case — which are the words used in the protocols — such as to warrant reference to the Attorney General according to its office policy and protocols. It identified several milestones in the evolution of the case of which the Attorney General ought to have been informed. In reality, he was consulted only about the first, which was the nomination of counsel.

The report instances the various relevant procedures and protocols in force, the policies in operation to ensure staff were aware of the requirement and that the office co-ordination arrangements provided further mechanisms to assist in observance requirements. The report finds the reason the Attorney General was not notified or consulted was the result of administrative error.

The report goes on to outline in the 19 recommendations the various issues it is believed can tie down all of these. To answer Deputy Rabbitte's question, I understand all 19 recommendations are under way. As is pointed out in the report, work on some began immediately in July, some in August and some in October. I know other work is ongoing in IT.

The report found that in spite of the failure to inform the Attorney General of the progress of the case, the case was processed in an expeditious, timely and conscientious manner. It finds no conscious or deliberate decision was made to withhold notification. The difficulty is that so many cases happen at any one time. I read some of the background notes in preparation for these questions and saw that the number of cases involving challenges to the constitutionality of Acts of the Oireachtas or statutory instruments is 550. The Deputy will agree this is a very large number, even though they are grouped into certain areas.

It is important that every one of those files, not to mind the hundreds of others, is followed through. The State offices dealing with these issues have large staffs and systems. I am glad to see they co-ordinate their systems and do not follow a case only within the protocols of their own offices. That is a major issue. The Chief State Solicitor's office, the DPP and the Attorney General's office work jointly on these cases, perhaps with the Department of Justice, Equality and Law Reform.

The procedures have been put in place and time will tell how effective they are. The offices have tried their utmost not only to nail down the difficulties of that particular case but to try to tie down the protocols. On a two-monthly basis they look back and co-ordinate their efforts across the main cases they deal with. I thought a small number of cases would be involved. However, as the Deputy can see from what I stated, a huge amount of cases are involved. At least they are grouped in areas and are not all over the place. The groups include the large number of nursing home cases and challenges to the Immigration Act regarding children born to immigrants. The majority fall within three different areas.

Protocols were put in place which it is believed will allow a proper handle to be kept on cases and to allow the relevant bodies to remain updated as these cases move through various systems and the courts.

I wish to ask the Taoiseach about a different aspect of this. He may recall the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, recently explaining on a public television programme the collapse of Dáil business on three occasions this term. He linked it to a logjam in the drafting section of the Parliamentary Counsel's section of the Attorney General's office. He stated it takes seven years to train a parliamentary draftsman. It seems a long time but I believe it to be the case.

Is it true the number of entry level drafters has not increased since 2001? I understand substantial increases were made in the advice section of the Attorney General's office. Is it true three younger drafters left during the same period? The result is the gap is filled by contract drafters, often from other jurisdictions not always compatible with our common law heritage. This poses its own difficulties in terms of interpretation. Sometimes, major differences in interpretation and style have led to judges being able to make inferences.

Is it the case that foreign contract drafters are supervised by Irish drafters? Does the Taoiseach know what is the proportion of foreign contract drafters as compared to Irish entry-level drafters taken in directly by the Office of the Attorney General?

An ongoing problem exists in obtaining, holding and training drafters. On a number of occasions over the past few years, approval was given to the Attorney General to obtain additional drafters. In my reply I mentioned some drafters were brought in from the younger people assigned to other Departments to help in the legislative process.

The issue of key experienced people is an extremely difficult one. The Deputy correctly stated a number of drafters are contracted. A number of them have become quite elderly over the past number of years. Their service has been magnificent and not having had them would have created a difficult problem for us. It is correct to state we had to seek drafters from outside the country.

We have a problem getting through legislation. I believe 21 Bills are on the A list at present and a large number of them are advanced. The complexities of modern legislation tend to get more complex each year. A drafter assigned to a Bill tends to remain working on it for a considerable time. This means other Bills are put aside and put back.

To the best of my knowledge there has not been a great number of people who want to take on drafting. This is despite the fact that the salary grades were improved quite substantially in an agreement made a few years ago. Even when they come in to the job, drafters want to move on to other areas. Drafting is a tedious and very tension-filled job involving reviewing legislation. I talked to a number of drafters over the years about this. It is a specialist position. Many of the people who have come in move on when they are still young. The retention level of drafters is not good even though on the face of it the career looks fairly good.

The advisory counsel's side is considered far more interesting and attractive than drafting on the Parliamentary Counsel's side and that is not changing much. From what I know, other jurisdictions have the same problem. Most of the people we get on contract would be retired people from other jurisdictions. We are not managing to lure them from the other grades. They are mostly people aged over 60 or 65. That continues to be a problem.

With regard to the last question, how many of the draftspersons have retired in the course of preparing Bills such as the charities Bill which we were promised in 1990 following the Costello report? Could the fact that people retired be an explanation as to why we are still waiting? There needs to be a radical rethink with regard to how we attract draftspersons. I understand approximately 19 are employed at present. Has thought been given to a formula for attracting more draftspersons? What is the Taoiseach's view in that regard?

I understand some of the drafting work of the Attorney General's office is being outsourced. Is experience being lost among in-house draftspersons? Is this a permanent solution or a short-term, stop-gap measure?

In terms of morale, would it help if the electronic legislation system hosted and maintained by the Attorney General's office was accurate in its electronic form? A person recently told me they were aghast at the inaccuracy of the electronic legislation system. Is the Taoiseach aware the electronic version essentially cannot be trusted and that one is therefore directed to the hard copy? Does it not make a mockery of the idea of having an electronic version of legislation if it must be checked on hard copy?

Has the Taoiseach considered the Tasmanian Government system of designating its electronic statute book as the authentic version? I am not sure if the Taoiseach is familiar with Senator Bob Brown and the Green Party in that part of the world but it has been very influential in this regard. The electronic version is the authentic version in Tasmania. Will that be considered more closely here?

The Sullivan report found that the recommendations made in 1994 had been largely implemented by 2006. I do not want to talk across the Minister of State, Deputy Kitt, if he is busy informing the Taoiseach about something.

There is no problem.

He is telling him about Tasmanian devils.

That is another story. Have the recommendations of the Sullivan report been fully implemented and have the flaws in the communications system identified in the report been rectified?

The parliamentary counsel published approximately 175 Bills. As a Parliament, we deal with more Bills than most. In terms of productivity, the number of Bills the Office of the Parliamentary Counsel produces is higher each year. However, while the staff of the office are working harder and producing more Bills, legislation gets more complex and is of a more specialist nature. It is a difficult job. Over many years I have talked to those involved in what is tedious work.

On the contracting out of drafting, I have heard the opinions of several Attorneys General over the years who claim that despite contracting out the work to various people — probably the last ten Attorneys General have said the same thing — they end up having to do the work themselves in the office. It certainly helps the work——

That is an average of one Attorney General for every year of the Taoiseach's tenure in office.

I was not just referring to my time in office. The position is the same at present. The staff find they have to check all the work so contracting work out does not help much. It is preferable to have a core staff within the office. That is their view and I am in no position to contradict them.

I am surprised at the position with regard to the CD-ROM. A CD-ROM takes the hard copy and provides it——

It is not up to date. It is worth checking.

I will raise it with the office. It should be up to date. We brought in reinstatement legislation which means there is a reinstatement process whenever the House passes an Act. The latest Act should be available, which was the idea of the reinstatement legislation. I will raise the matter with the staff.

With regard to the Deputy's point on legislation, the broadcasting Bill is being published online for consultation and to allow the public to make their comments on it. That will help the consultation process. Parts of the charities Bill were drafted but the person working on one part was taken off that work to work on other legislation. I understand that the individual involved is now working on legislation which the social partners are demanding that we deal with under the initiative. There is a host of legislation in that regard. The staff are trying to finish that legislation by January but it would be helpful if they were able to get a free run at this Bill.

The amount of legislation to be dealt with by the office is the difficulty, given the requirements of the House for legislation in so many areas. The staff are producing more Bills every year but we are producing far more requests for legislation.

The problem is that people are directed to the hard copy. It is not authentic.

As the Taoiseach is aware, the online Statute Book facility is now preceded by a disclaimer which the user must accept. It states that the Attorney General assumes no responsibility for the accuracy or up-to-date nature of the information provided on the website. Given that there has been an IT report and a three-man recommendation in 1995 following the Sullivan report, we should have moved on from a position where the information published on the website, which is accessible to citizens, researchers, academics, legal practitioners, legislators and members of the Judiciary, is not 100% reliable. Either the Statute Book is accurate or it is not. We should be in a position to state that the content of the Attorney General's Statute Book website is accurate. Will the Taoiseach comment on that?

The Taoiseach will recall the famous Fr. Smyth affair, which was followed by recommendations for changes within the Attorney General's office so it would never happen again. Deputy Rabbitte referred to the Mr. A statutory rape case. I stated at the time and still believe it is incredible that the Attorney General of the day, who meets the Minister for Justice, Equality and Law Reform of the day on a regular basis, would not be able to at least state that, as case X or Y is before the Supreme Court and as the decision to be made by the Supreme Court, while it is for that court to make, will be one way or the other, the Government of the day will be in a position to act accordingly.

During the statutory rape case, as the Taoiseach was on official business at the United Nations, the Minister for Justice, Equality and Law Reform, who was left here, told us there was no need for us to rush but the next day he had to say the Dáil would be recalled. The Supreme Court made its decision one way and then made a revised decision a fortnight later. Has that matter been dealt with in terms of the implementation of the Sullivan report? Is the Attorney General aware of any sensitive social cases such as this, where a decision is currently in the process of being arrived at in the Supreme Court that might require the Government to act legislatively and promptly? The Taoiseach does not want what happened in the Smyth case a number of years ago and in the recent statutory rape case to arise again and neither does anybody else. Therefore the Taoiseach needs clarity of agenda and real information from the Office of the Attorney General for the Cabinet, particularly for the Minister for Justice, Equality and Law Reform. Has that been addressed in following the Sullivan report's recommendations?

Each case is different. In the CC case not all the procedures were followed. However, all the work on the case showed it was processed in an expeditious, timely and conscientious manner. Although the work went on, the Attorney General had not been informed. Efforts have been made to improve procedures. Some months ago when I asked how many challenges to constitutional Acts of the Oireachtas there were, the number was 550 cases.

There were 550.

Yes. Some of those were blocked around particular issues. With 550 cases coming down the line, as well as all the other cases, it would be difficult for the Attorney General to be on top of them all, even with all these procedures. Could one ever be on top of this? However the procedures have been put together. The more important point, as I said to Deputy Rabbitte, is regular interaction between the offices, and they have brought in procedures for that. They are all busy fighting cases in the courts, and it is important that they sit down and go through the cases that arise. The sheer volume of issues being challenged arises. However, they feel happy that they have put these procedures together. Only time will tell how they work. As Deputy Kenny knows, there is no end to litigation. They have tried to put together weekly and bimonthly meetings to keep track of this. While I would love to make a commitment that this means nothing will ever slip through, I would be reluctant to do so.

Does the Taoiseach recall that the Sullivan report stated the case in question should have been brought to the Attorney General's attention on a number of occasions in accordance with stated and well known office policy and procedures, but it was not? Does the Taoiseach have residual doubts on the Sullivan report's finding that there was no deliberate attempt to withhold information from the Attorney General and that there was no attempt at a cover-up? If that is the Taoiseach's view, does he also agree the debacle led to a serious situation where standing law was struck down by the Supreme Court and replaced by flawed emergency legislation? Is the Taoiseach satisfied this cannot happen again? Is he satisfied everything that needs to be done can be done and that there will be no repeat of this debacle? Can he give such an assurance? When will the flawed emergency legislation be revisited in this Chamber?

I do not accept the Deputy's point, which he has made on two occasions, that the Criminal Law (Sexual Offences) Act 2006 is flawed. Although there are different views on this matter, the Attorney General is satisfied the Bill is not unconstitutional. Otherwise it would not have been introduced. Although I accept that many issues must be teased out, not least that there is a general dissatisfaction that there is a need to provide for a defence of honest belief as a result of the Supreme Court ruling, it is not flawed.

I have answered the other issues. The person who dealt with the case processed it in an expeditious, timely and conscientious manner. There was no deliberate decision to withhold notification or information from the Attorney General, nor was there any suggestion of cover-up or concealment. Under procedures and protocol the case should have been brought to the attention of the Attorney General. It was not, and we know what happened. We also know that over the period no convicted prisoner who was sentenced to jail for offences under section 1(1) of the 1935 Act was released from jail, other than Mr. A, who was released only for a few days as a result of the Supreme Court judgment. None of Messrs. B, C or D, or any other convicted criminal, was released from jail. The procedures have been thoroughly examined in the Sullivan report. The Office of the Attorney General has worked diligently in the past four months to implement those recommendations in its office procedures and protocols, which are strict. The Office of the Attorney General has also worked to develop better co-ordination and to highlight issues on a more regular basis. That does not take away from the volume of work and case law it has. Because the courts, including the Supreme and High Courts, have more members, the Office of the Attorney General experiences heavy workloads and pressure. The last mistake was not one of a lack of procedure but an administrative error. We have to understand that it can happen. While it would be great for me to say these things should never happen, they can. The Office of the Attorney General will do all it can to ensure these matters are rectified by having tighter procedures and controls in the future.

Written Answers follow Adjournment Debate.