I draw everyone's attention to the fact that while members of the committee enjoy absolute privilege, the same privilege does not apply to witnesses appearing before the committee and the committee cannot guarantee any level of privilege to witnesses appearing before it. I remind members of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside of the House or an official either by name or in such as way as to make him or her identifiable. Members are also reminded of the provisions in Standing Order 158 that the committee shall refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policies. I welcome Mr. Liam O'Daly, director general of the Office of the Attorney General, and I ask him to introduce his officials.
2008 Annual Report of the Comptroller and Auditor General and Appropriation Accounts.
Mr. Liam O’Daly
From the Office of the Attorney General are Mr. Padraig McMahon, head of administration, Ms Deirbhle Murphy, chief parliamentary counsel, and Mr. Paul Gibney, finance officer. Mr. Brian Byrne is assistant chief State solicitor at the Office of the Chief State Solicitor. Mr. David O'Hagan and Mr. Michael Fallon are also from the Office of the Chief State Solicitor.
Mr. Barry Donoghue is from the Office of the Director of Public Prosecutions.
Mr. Barry Donoghue
With me there is Ms Claire Loftus, head of the directing division and former chief prosecution solicitor, and Mr. Declan Hoban, our head of administration.
Representatives from the Department of Finance are also present.
Mr. Dermot Quigley
I am a principal officer at the Department and beside me is my colleague, Ms. Joan Daly.
I invite Mr. Buckley to make his opening comments.
Mr. John Buckley
The three offices being reviewed by the committee today all provide legal services to or on behalf of the State. The net overall cost of these services in 2008 was €103 million. The core cost of the Attorney General's office was €14.5 million. The key related services provided by that office include legal advice to the Government and the drafting of legislation. Apart from this it is independently responsible for protecting the public interest in certain proceedings. It also provided a grant to the Law Reform Commission of €3.6 million. The Law Reform Commission is an independent body that keeps the law under review and makes recommendations for its reform.
The Office of the Chief State Solicitor cost €40.6 million, of which €17.8 million was incurred on counsel fees. It essentially acts as the solicitor to the Attorney General and provides litigation services as required by the Attorney General and a range of other legal services, including advice and conveyancing. The Attorney General and the Chief State Solicitor's offices are linked through an advisory council and share certain governance arrangements.
The Director of Public Prosecutions incurred a core cost of €24 million. Its central role is to direct and supervise public prosecutions. Much of its work is outsourced either to the private bar or the local State solicitor service. In 2008 it spent €13.7 million on counsel fees and €6.5 million on local State solicitors. All three offices received clear audit opinions and there was no matter relating to them in my annual report for 2008.
At the end of the examination of the Votes this morning, the committee will return to the issue of the cost of tribunals, which we examined on 2 July 2009. The issue of legal costs and the appointment of legal services are relevant to the examination of the Votes before us given that all three bodies interact with the legal system in the State. The State is the largest purchaser of legal services in the country and responsibility falls on us for ensuring value for money from these three agencies. Will Mr. O'Daly make his opening statement?
Mr. Liam O’Daly
I will first address the point made by the Chairman. I know the committee invited representatives of the Attorney General to address it on the matters referred to by the Chairman with regard to tribunals in a letter dated 10 September 2009. The Chairman is aware that my predecessor wrote back to the committee on 29 September 2009 but I will read the letter out. It states:
Dear Mr. McEnery,
I refer to your letter to the Attorney General dated 10 September 2009, in which you invite the Attorney General to the resumed examination of these issues on 29 October. The previous attorney's involvement in the matter of costs is dealt with in the Comptroller and Auditor General's report on the tribunals of inquiry and he has nothing further to add to this. This attorney had no involvement in the matter.
The issues referred to in your letter to the Attorney General are not matters concerning the general administration of this office and therefore are not matters by which the Attorney General or any of his officers could be examined on by the committee. [That is the view of the Attorney General.] In the circumstances, neither I nor any of my officers are in a position to accede to your invitation to attend the resumed examination of these issues.
I do not wish for the Chairman to take that as meaning our office or that of the Chief State Solicitor, as they relate to tribunal fees, wish to be unhelpful. We fully co-operated with the Comptroller and Auditor General in his very comprehensive report and we have nothing to add to or take away from that.
On previous occasions when we have been invited to inform or discuss our advice to Departments in this respect, we have always — unfortunately from the committee's perspective — declined. The reason is that we cannot disclose our advice to Departments and there is a statutory basis for that in section 3(5) of the 1997 Act, of which the committee is aware.
The matters of tribunal fees, particularly the subject matter of the report, are not matters of the general administration of the Attorney General and are not matters of general administration of the Chief State Solicitor or the Director of Public Prosecutions. They do not come within our Vote and none of these moneys was paid out of the Vote of the Attorney General. They do not constitute any of our expenditure. When we advise Departments and are asked for views on various aspects of tribunals, including conduct, process and so on, we give them. That is not as part of the general administration of the office.
We are not trying to be unhelpful. For example, if I indicated that we would give full co-operation as the committee sees it by describing all the advice we gave to Departments with regard to tribunals, including costs, it would depart from the principle in section 3(5) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997. That section makes it clear that the Director of Public Prosecutions, an officer of the director, or the Attorney General or his officers, including the Chief State Solicitor, are precluded from disclosing matters other than the general administration of the office.
I emphasise that I do not want to be unhelpful. The committee is aware that we give advice to Departments with regard to tribunals and later it may hear of the tribunals of inquiry Bill pending in the Houses. That is the work of our office and of the Parliamentary Counsel. There are many provisions in it that I hope will help to minimise the costs of tribunals.
At all times, when the office gave advice on matters it was only advice. The moneys spent were not from our Vote and the final sanction, etc. would have come from the Departments paying out those moneys.
I understand what the witness has said but we have a responsibility to examine the legal costs related to the three agencies present and the administration in the Departments. That is within our remit and we will pursue the matter today. Representatives of the Department of Finance are present and we had a session with them and representatives from other Departments previously. Many of the questions raised by me and others have not been answered to our satisfaction. We reserve the right to pursue those further, not only with the Department of Finance but with other Departments.
The public is seriously concerned about recent decisions and announcements from Mr. Justice Moriarty going back to 2002. Much water has gone under the bridge since 2002 and much taxpayers' money has been expended since. We have a certain and genuine concern that people may have been going down culs-de-sac. The advice of the Attorney General given to the tribunal with regard to certain issues is on record and we are concerned the advice may have been ignored at considerable cost to the State. We have a concern and the public has a concern. We will do our best, within our powers, to pursue this. The Department of Finance still has questions to answer on many issues with regard to the tribunals.
Mr. Liam O’Daly
On the issue of the Moriarty tribunal, we understand that of course it is still in process. As a result of the evidence that was given over recent days, we have been asked for further submissions. I could not possibly say anything in this regard. Equally, it would be invidious for me to be asked to make any comment about the process of the Moriarty tribunal. The chairman has a difficult job and I do not think I should add to his difficulties by making comments here. I ask that the committee not put me in the position of being asked to answer questions in this regard.
We will not be seeking any information that is outside our remit. Mr. O'Daly has our assurances on that. However, there are certainly questions about what has been happening, which must be answered by somebody. I ask Mr. O'Daly to commence his opening statement.
Mr. Liam O’Daly
I am pleased to meet the committee today to discuss the 2008 appropriation accounts of the Office of the Attorney General and the 2008 annual report of the Comptroller and Auditor General. I was appointed to the position of director general two months ago and this is my first time to appear before the committee in my role of Accounting Officer. The office last made an appearance before this committee in 2004 and we have since then, as indeed before then, continually worked on developing the office and its controls. We are always alive to the need to adapt and adjust over time and as things and ideas change.
The office constantly addresses the need to provide legal services to its wide range of clients and in doing so is always aware of the need to ensure its lawyers are fully in a position to do so. This involves ensuring legal staff are fully expert in their areas of legal work and have at their disposal all the resources to do their work to the highest standard required by the Government. Law is constantly changing through case law and new legislation and is continually re-interpreted. New areas of law develop, including through law-making bodies and courts outside our jurisdiction, such as the law of the European Union, the European courts and international law. This means our lawyers and the administration in the office must work together to ensure the high levels of legal expertise and high standards of service delivery to our clients.
Everything we do is focused on achieving this aim. For example, our information technology and case and records management systems, library and knowledge management unit, human resources unit, registry, finance and change management units all feed in essential ways into the office's provision of legal advice and legislation to Government. We work very closely with the Office of the Chief State Solicitor, which is a branch of the Attorney General's office, in providing legal services and also share the management advisory committee, IT, knowledge management systems and so on with it to ensure economies, efficiencies and expertise. We also work closely with lawyers in Departments and offices.
The office has continued to embed and enhance its client service initiatives, fully roll out its case and records management system, implement its statement of strategy for the period 2006 to 2008 — we obviously now have another statement of strategy for the period to 2010 — make significant progress in modernisation under the terms of Sustaining Progress and Towards 2016 — again, that was during 2008 — implement the recommendations of the Sullivan report, continue the statute law revision project and give advice on key legal cases and draft critical legislation, frequently at short notice.
For 2008 the office operated on an administrative budget of €19.5 million, for which the outturn was €18.1 million. As is usual in the Office of the Attorney General, a significant proportion — close to 60% — of our budget is 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 expenditure is the €4.1 million — that is, 21% of the total — budget for the Law Reform Commission which is channelled through our Vote as a grant-in-aid.
During the year the office had savings in almost all budgetary subheads, with the majority arising under subhead A1, salaries, at €515,000; A5, office machinery including IT, at €207,000; and subhead C, Law Reform Commission, at €608,000. The savings in salaries arose due to a deferral in the filling of vacancies, particularly in the latter part of the year. The savings in subhead A5 arose due to a lower than expected spend on IT hardware and the payment of some of the costs of updating the electronic Irish Statute Book in 2009. Finally, the savings under the Law Reform Commission subhead were due mainly to expenses, including rent and utility costs, not accruing as early as expected owing to a delay in a move to new premises. In all areas, the office closely monitors and controls expenditure to ensure appropriate use of funds and maximum value. Each month the office's management advisory committee is briefed on the office's financial position — this is continuing at the moment — including such issues as the formulation of annual budgets and measures required to meet savings or staffing targets imposed by the Department of Finance.
The year 2008 was notable in that following a Government decision on 8 July the Department of Finance imposed savings targets on all Departments and offices. These savings, which were to be yielded in the remainder of 2008 as well as for 2009, amounted to €234,000 for 2008 and €1.242 million for 2009. The office met its targets but it was a difficult process. In particular, the payroll reductions demanded for 2009 required the office to take measures during the latter part of 2008 in respect of staffing to ensure it was able to operate within the agreed parameters for 2009. Approximately 12 positions have been deliberately left unfilled since then. We have been able to restrict these positions to the administration and support areas, as the office's priority has been to maintain its level of legal service to its clients.
As the Comptroller and Auditor General said, the office provides two main services to its clients: legal advice and legal drafting. The advisory side of the office organises its work around legal specialisms. There are five groups, each managed by an advisory counsel grade I, which is the equivalent of an assistant secretary in the general Civil Service grades. Each group is available to deal with specific areas of law, allowing the members of the group to become expert in those areas and provide a suitably high level of expertise to clients. There is regular contact between the groups and their client Departments, including meetings specifically to discuss the quality of service being provided. The scope and variety of the legal work is huge, with new areas of work constantly appearing.
The drafting service is provided through the Office of the Parliamentary Counsel. That office is organised into three groups, each headed by a parliamentary counsel, which is also analogous to an assistant secretary. Each group serves a number of specific Departments. This enables the drafters to build up a high level of familiarity with a Department's work and objectives which then facilitates drafting on complex topics. As on the advisory side, there are regular meetings with clients to ensure the service provided meets their needs.
Much of the work of the office, particularly of the Office of the Parliamentary Counsel, is driven by the Government's legislative programme. Members will be aware of this extensive programme, which places heavy demands on the office in both the formulation of advice on legislative provisions and their actual drafting. Much of the advice must be provided and drafting done at relatively short notice. There has been an enormous increase in the number of amendments made to Bills during their passage through the Dáil and Seanad. This places considerable demands on the office, especially if there is a long period between the original drafting of the Bill and the subsequent drafting of amendments.
The administration side of the office is organised into a number of business units — human resources, finance, library and knowledge management, information technology, change management, training and development, internal audit, corporate services and registry. There are frequent general group and unit meetings as well as more general meetings of staff. Senior management participate in the office's management advisory committee, while all staff are represented on the office partnership committee as well as a number of partnership sub-committees on specific issues. Knowledge management and information sharing is a feature of how the office operates. Precedents, procedures and practices are recorded and made available as appropriate to staff. To ensure staff skills, particularly legal skills, are kept up to date and developed, the office promotes training as part of PMDS.
In conjunction with the Chief State Solicitor's office, the office has a full-time internal auditor and an audit committee. The committee 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 advisory committees and made available to the Comptroller and Auditor General.
The office operates a financial management system which is of great assistance in the monthly presentation on financial matters to the members of the management advisory committee. There is ongoing development of an interface between the financial management system and the case records management system to allow for the development of costing as well as enhanced financial and non-financial management reports.
The office's client and customer panel, representing clients of the advisory counsel and Parliamentary Counsel sides and customers of the administration side, held its inaugural meeting in November 2005. A follow-up meeting of the advisory and administration panel was held in September 2007 and the Office of the Parliamentary Counsel panel met in February 2009. The office undertook separate follow-up satisfaction surveys of clients and customers of the advisory and administrative sides and of the Office of the Parliamentary Counsel in March and July 2008, respectively. The findings of the surveys, benchmarked against the results of the previous survey undertaken in 2004, compared very positively to the findings of the 2004 survey in the key areas of communications, responsiveness and timeliness, accuracy and quality of outputs and service delivery.
The office published its first client and customer charters in December 2005, in both languages. Revised client and customer charters for the period 2008 to 2010, taking account of the reports of the panel meetings, the client and customer satisfaction surveys and relevant developments at central level were published in both languages in June 2009. The office's client service guide for 2005 to 2007 is available on the office website, in both languages. The revised guide for the period 2008 to 2010, taking account of the reports of the panel meetings, the client and customer satisfaction surveys and relevant developments at central level were published in both languages in June 2009.
The need to effect savings in public expenditure is fully appreciated by the office. In the past two years we have reorganised staff in order to operate within the financial parameters set down by Government while still maintaining the expected high level of service. Finances and other resources such as staff for the foreseeable future will be restricted and our main challenge will be continuing to adapt in order to ensure we meet the demands of our clients.
That concludes my brief overview of the work of the office and its organisation and I am ready to answer any questions the members of the committee may have on the office's Vote. I thank the committee for its attention.
I thank Mr. O'Daly. Before I call on Mr. O'Hagan to make his opening statement, I point out that opening statements of committee witnesses should be limited to approximately five minutes. Rather than take up the entire morning with opening statements, I ask for a synopsis or abridged version. We shall put on record opening statements as supplied to us.
Mr. David J. O’Hagan
I shall try to concentrate on the most important aspects of the opening statement. I am pleased to attend and give evidence to the committee.
No doubt members are familiar with the functions of the Chief State Solicitor which I shall describe as fully as I can. Most of the functions involve providing service in the area of civil litigation, both within the Irish courts and for Ireland in the European Court of Justice in Luxembourg. Services include defending all constitutional actions taken against the State, representation in the ECJ, dealing with European arrest warrants and extraditions, and mutual assistance arising from our international obligations in respect of fugitives from prosecution, the defence of all commercial cases instructed by the Government, the defence of all judicial review and habeas corpus proceedings on behalf of Departments, clients and offices.
We also provide an asylum law and immigration law legal service for the State and deal with all asylum litigation for the State. We provide a conveyancing and property law service and defend civil proceedings taken against agencies such as the Garda Síochána or the Defence Forces. We are still dealing with the residue of childhood abuse cases and we provide solicitor support to Departments in respect of proceedings taken by Government.
We represent State parties in taxation of legal costs before the Taxing Masters. We also look after commercial contracts in terms of advising and preparing these contracts and we represent individual Departments and public interest at tribunals and commissions of inquiry.
There are many challenges facing the office. I have set these out and they are on the record. I refer to our case load for 2008, the year under review. One indication of case load would be the number of cases taken on and closed off. Members will see that during 2008 we closed off 3,430 cases while opening another 5,400, leaving us with work in progress on 22,700 cases. That is one indicator of the work of the office.
We have three subheads to our Vote. The first is the administrative budget. Gross outturn for my office was €41.35 million with staff salaries accounting for 37% of the total. We had a staff complement of 243 at the end of 2008, made up of 116 solicitors, 35 legal executives and 92 clerical support including administrative staff in key support areas such as human resources, IT, accounts and library services.
Subhead B is that portion of the Vote which is used by my office in paying counsel's fees. Expenses in this area account for the majority of the remainder of the Vote, namely, 43% of the expenditure of the office. That was the case in 2008, at least.
Expenditure on fees payable to counsel is the largest area of expenditure in the office. In 2008, it was especially large, with an estimated provision of €15.8 million, which was exceeded by €1.89 million. The excess was covered by savings in other areas of the office and we did not require a Supplementary Estimate to cover it.
Expenditure in this area depends very much on the level of activities in the courts, the amount of advice required by the State and proceedings taken against the State. It is very difficult to forecast accurately for the following year. We had a number of high profile cases which accounted for a large proportion of the expenditure. Eighteen cases accounted for expenditure of €2.8 million.
There are significant controls in place to manage expenditure and fees to counsel. Guidelines agreed with the Department of Finance governing payments of counsel's fees, which have been in place since 2002, were applied throughout the year under review. These guidelines remain in place with some changes made for the purpose of achieving fuller levels of consistency in their application across the office.
The assessment of counsel's fees on briefs and other matters requires detailed attention to each case, looking at the volume and complexity of the materials to be assimilated, the magnitude and the originality of the issues, the time required to do the work, the urgency and importance of the case, and the seniority, standing and special expertise of counsel. We look at potential exposure to the State, to consequential legislative change or financial implications and at fees paid in comparable cases. We always look at the performance of counsel as a matter to be taken into account in the payment of fees and performance of counsel as reported within the office.
In these cases, legal officers dealing with the file recommend the fee properly payable and consideration of these factors. These may or may not necessitate a reduction in the fee sought. The recommendation is approved in writing by the head of section and, in the more complex cases, by the head of the division, before being transmitted, in many cases, to the Attorney General for final sanction. Recommendations are made having regard to the guidelines in force from the Department of Finance since 2002. Although market forces influence the ultimate level of counsel's fees it is recognised clearly that the Attorney General's office and the Office of the Chief State Solicitor pay counsel's fees at significantly less than the perceived market rate. In any event, where a fee exceeds €9,525, sanction of the Department of Finance is required.
Concerning my view that the State pays significantly less than the perceived market price for counsel, I have carried out research in my office in this regard and have compared fees we pay to similar and, in many instances, the same cases, where the fees paid to the other side have been taxed by the Taxing Master. I did this last year for the bord snip report and we saw quite a substantial rate of discount for the State. I have repeated that exercise since and I am satisfied that the State is receiving very substantial discounts from market rates for legal services and payment of counsel.
The office places a heavy emphasis on the control of fees. In 2009 these controls were enhanced as part of the Government-wide response to the economic conditions. We were anxious to find new savings in the subhead and to ensure we were receiving greater value for money. The new controls were also focused on implementing the Government's policy of applying an 8% reduction in professional fees. We have now put in place a high level professional fees group within the office which has operated from the beginning of 2009. All recommendations for fees and all sanctions under preparation within the office are vetted by this group. I sit on this group as does Mr. Byrne. The purpose of the group is to ensure that the fees recommended for payment are fair, consistent across the office, in keeping with guidelines and Government policy, effect savings and that they represent good value for money. In cases where the final sanction of the Office of the Attorney General is required the views and the workings of the CSSO profession fees control group are available to that office. The committee might be interested to hear that, following these enhanced controls, the office achieved an overall reduction of 14.7% in the outturn for payment of counsel's fees when comparing 2009 with 2008, and also taking into account, as required by the Department of Finance, a certain adjustment for one particular matter where there was a substantial recovery of counsel's fees. These controls are continuing.
The office believes the rates for fees it pays counsel are significantly lower than the rates operating on the market. There are benefits, of course, to being retained by the State including the certainty of being paid in any particular case. On a comparison of fees paid to State counsel against fees fixed by the Taxing Master the evidence supports the view that State rates arepreferential.
Subhead C provides for expenditure on more miscellaneous costs of the office, witnesses and litigation, stenographer fees in court cases and the cost of retaining people in connection with the services of the office. One item within that Vote, and which is substantial in so far as in 2008 it cost the office €2.95 million, is the cost associated with payments under the Attorney General's scheme. The objective of the Attorney General's scheme is to provide legal representation in certain types of proceedings to persons who are unable to pay for such representation and where there are no other forms of legal aid available. Assistance for legal representation is available for extradition matters, bail applications, habeas corpus applications and certain judicial review cases where the liberty of the person is involved. The scheme is necessary because there has been a perceived gap in legal aid provision. While the administration of the scheme was transferred to the Department of Justice, Equality and Law Reform in 2008, the CSSO is still accountable for the expenditure and the expenditure is met from its Vote — subhead C. The current role for the office is primarily to reimburse the Department of Justice, Equality and Law Reform for expenditure under the scheme and to account for such expenditure. I have been of the view for quite some time that the State would be better served by having this scheme aligned with other Department of Justice, Equality and Law Reform functions and that Department having full accountability for that function. Arrangements for this are in the course of being agreed with the Department and at the end of 2010 I look forward to that transfer being implemented.
Subhead D — appropriations-in-aid — records funds that accrue to the office, often payments recovered in respect of litigation. The policy of the office is to see, where we are successful in litigation, an order for costs in favour of the State. That is sought in almost all cases. We do not always get the order. Where we get the order, we endeavour to implement it, in so far as it makes economic sense to do so, in other words where the other party is a mark for payment. In 2008 we recovered costs of €500,000. In 2009 costs recovered increased to €3.7 million, however that included one very substantial case where costs of €2.2 million were recovered. The committee may be interested to hear that part of the recovery of the €3.7 million included in the order of €700,000 in respect of fees due to one of the tribunals by an unsuccessful litigant in a judicial review.
Thank you. May we publish your statement?
Mr. David J. O’Hagan
You may.
I invite Mr. Barry Donoghue to make his presentation.
Mr. Barry Donoghue
In the time available I will speak to my statement and note it will be part of the record of the committee. I set out in my statement the work of the office under three headings: organisation and structure; main elements of expenditure under the Vote; and current and future challenges to the office.
The starting point for any consideration of the organisation and structure of the office is the Nally report of 1999. The Government accepted all but one of the recommendations and that one is now being implemented over time. As a result we now have our own solicitor service. Prior to that, the Chief State Solicitor provided a solicitor service to the director. We also took over the Chief State Solicitor function in May 2007. The taking over of the solicitor function from the Chief State Solicitor involved an expansion of the office. In 2001 and 2002 the office grew from a complement of 39 to a complement of 165. Most of our staffing, in legal terms, is on the solicitor side, covering all the courts in Dublin, the Central Criminal Court, the High Court and the Supreme Court. That has been a major change since I first appeared before this committee in February 2000. The office has had to develop administrative supports in the areas of HR, IT, library, finance and corporate services.
As a result of the transfer of the legal staff, the volume of files being processed by the office has increased from approximately 6,800 in 2001 to more than 14,000 files in 2002. Apart from that increase, over time there has been an increase in the complexity of work coming into the office. That is driven by two factors. First, we have allowed certain more straightforward cases to be prosecuted by the Garda and the District Court without reference to us. According to the Courts Service statistics between 300,000 and 400,000 cases go to the District Court every year. These are taken in the name of the Director of Public Prosecutions but are actually prosecuted and dealt with by the Garda. The cases that come to us tend to be more serious cases and that increases over time. Second, I mention all the various agencies which send files to us for trial on indictment. These include the Revenue Commissioners, the Competition Authority, the Office of the Director of Corporate Enforcement, the Health and Safety Authority, local authorities and the Garda Síochána Ombudsman Commission. Many of these files can be quite complex and time consuming.
In regard to the role of the Garda, we have put in place two general directions under section 8 of the Garda Síochána Act to guide the work of the Garda in prosecuting cases. In addition, the Garda when prosecuting is subject to our guidelines for prosecutors.
Turning to the expenditure for 2008, I have dealt with it under a number of headings, but I will concentrate on two in particular. First, counsel fees, as in the case of the Chief State Solicitor's office, are the largest part of our expenditure, accounting for €13,700,000. Much of that is driven by the number of cases actually processed by the courts. As I mentioned in my paper there has been a fairly sizeable reduction in counsel fees as a result of the economic downturn. There will be further reductions in the very near future which will bring counsel fees down in the order of 22%. I echo what the Chief State Solicitor said in respect of the fees we pay to our counsel being a considerable discount on what would be available if a counsel was engaged by a private client. We have done a similar exercise on cases for taxation and it shows a considerable discount.
To highlight the sort of fees we are talking about, apart from cases where we would need sanction from the Department of Finance, our largest brief fee would be for a murder case, which is €8,600. That will be reduced by 8% shortly. That covers all the preparatory work and the first day of appearance in court in what can be complex and voluminous cases. In the majority of cases in the Circuit Criminal Court the brief fee is €1,380. I also mention the fact that in most of our cases we employ only one counsel, usually a junior counsel.
On the question of costs, which is something the Chief State Solicitor touched on, in 2008 costs awarded against the director came to €5,900,000. That is an area which has risen in recent years. I have explained the drivers for that in my paper. Essentially, it is an increase in litigation in judicial review and habeas corpus cases and a tendency on the part of people applying for judicial review and habeas corpus not to opt for the ad hoc legal aid scheme, which would involve a big saving to the taxpayer if it applied in the case, and then the level of costs, which we are bound by, in which the Taxing Masters of the High Court set the fees. It is something about which we are very concerned. We have put measures in place to seek to reduce the costs in this area and we have also suggested legislative reform.
I will mention but will not go into much detail about our new case management and tracking system which arose from the necessity of having the one system for the entire office. When the solicitors division was established in 2001 we needed one system. We had different systems and over time we have now developed a uniform system with a single point of access for all legal staff. In terms of the cost of that, it has come in on budget. It was a fixed price contract and it is working very successfully. We have also made reductions, as I mentioned, in the annual maintenance costs which have been halved to just under €72,000.
I also mention the value we place on our audit committee and the internal audit carried out under the auspice of the audit committee. I have set out in the paper submitted to the committee the list of items on which the internal audit function has been carried out.
Regarding future challenges, I will not dwell too much on those but some of them apply to all offices. They include how to manage our budget in a position where we may be dealing with an increase in volume and complexity of work. One action we need to take is deal with more delegation of function between the two legal divisions. I mention how that is hampered by the fact that since the amalgamated office was established in 2001 it remains in two different locations. There was a plan to move us into the Department of Defence headquarters in Infirmary Road, which would be very close to the new criminal courts complex. That would have required an extension which has been put on hold because of the current economic position but we will continue to work with the Office of Public Works to find a single location because until we do so certain benefits we would like to achieve from better working between the two legal divisions will not be achievable.
I mention also the context of increased legislation, increased case law and developments from the European Union.
A very important challenge for the prosecution service is a role in regard to victims. I have mentioned much work in that area. There are two information booklets on our website which are available in the two official languages and nine foreign languages and which were audited by the National Adult Literacy Agency to ensure they were user friendly. We have also built up relationships with victims' representatives and support agencies.
Finally, I mention the director's policy on giving reasons. I have submitted to the committee a copy of that policy. Because of the lead-in period between an offence being committed and a file coming to us there has been an extension of the pilot but it applies only to fatalities which have occurred since October 2008. In fact, we have had very few requests for reasons, and they have all been dealt with by me. I have reviewed the file and then written appropriately to either the solicitor or the next of kin in those cases. That is something we will need to review for the next year to see whether the giving of reasons can be extended in regard to other areas.
Can we publish Mr. Donoghue's statement?
Mr. Barry Donoghue
Yes.
I welcome Mr. O'Daly, Mr. O'Hagan, Mr. Donoghue and their colleagues. It is important to record that all of the offices represented here provide a very professional service to the State. I note the Comptroller's audit opinion, thankfully, was a clean one in that no significant issues were identified in the report.
I have a number of questions. On the expenditure across the different Votes, it is clear that fees to counsel is a significant element of the overall expenditure. Between the Chief State Solicitor's office and the Director of Public Prosecutions the total fees paid to counsel in 2008 was approximately €31.5 million. It is important that there is transparency in terms of the way that money is spent. Mr. O'Hagan in particular went into some detail on the process involved in setting fees and so forth but I want to ask Mr. Donoghue and Mr. O'Hagan in particular about procurement issues. Where work must be carried out by counsel on behalf of their office, how do they go about identifying the appropriate counsel to undertake that work and what procurement procedures are used?
Mr. Barry Donoghue
On that issue, we organise our system of employing counsel on the basis of panels of which we have a number. We have a panel for criminal trials, a panel for judicial review and a panel for bails. In each county outside Dublin we have a standing county prosecutor who works for the State solicitor.
Regarding county prosecutors, when a vacancy arises we advertise through the Bar Council to ensure that people interested in becoming a prosecutor can apply to the office. In recent years we would then consult with the State solicitor and perhaps neighbouring State solicitors, and we have an interview process as a result of which a recommendation is made to the director that a person be appointed to the position of State prosecutor for the particular county. That is the position on cases outside Dublin.
In Dublin, we have our panels, including senior counsel panels, and essentially when a person comes to our attention as being somebody who is interested in doing criminal work, and they can write to us if they wish, we will normally carry out some sort of assessment of the type of work they do, if they have appeared in court and so forth. Generally speaking, we would start them on our bail panel and see how that goes and then promote them to the more senior panel, namely, the trials panel.
We intend to have a more formalised system for Dublin shortly whereby people would be notified that they can write to the office. They can do that currently but everybody may not be aware of that. We would then have to put in place a process of assessing those candidates. Considering the number of counsel in the library that could be a time-consuming process, therefore, we are examining the feasibility of doing all of that. There are no vacancies currently on any of our panels but we intend to start that process shortly to ensure that people interested in becoming a prosecutor can apply. We will then assess their suitability. In overall terms there are about 170 counsel on our various panels, including junior and senior counsel, and the work is spread across the board in terms of all of those counsel.
Mr. David J. O’Hagan
Regarding the Chief State Solicitor's office, we also maintain panels which are prepared by the Attorney General. The Attorney General invites interest from counsel to participate in panels and identify areas in which counsel may feel they have a strength or are recognised as having a strength. Panels cover a wide area of work types and we are currently reviewing those panels to ensure the descriptions of the panels relate more clearly to the work of the office.
When counsel has to be nominated to any particular case the nomination is made by the Attorney General. That is done on the basis of advice within his office but also having regard to the issue on hand, its importance to State, its cost and, most important, the expertise of the counsel. Decisions are made on that basis.
On selecting counsel to go on the various panels, our office is proactive in trying to identify counsel who may not be on panels but who we believe are good. Approximately twice a year we try to harvest that information within the office where we request solicitors to bring to the attention of senior management within the staff barristers they see performing well in court, usually against us or perhaps in other cases, or barristers from whom they have seen good paperwork. Those are given serious consideration and brought to the attention of the Attorney General. There is a concern to ensure that the counsel we are using are the best, the most attentive, give a prompt service to the State and that they have the expertise that is needed for the matter in hand.
In the Office of the Chief State Solicitor the panels are updated twice a year.
Mr. David J. O’Hagan
The panels are continuing panels but the Attorney General will add to those panels. They are the Attorney General's panels and he will add to them as he sees the need within our office. We would bring to the Attorney General, perhaps twice a year at his request — this is a policy initiative——
Is there a periodic advertisement inviting people to apply to join the panel?
Mr. David J. O’Hagan
No, it is slightly different. It is people we observe and we believe to be good performers. We are looking for good performers.
Is Mr. O'Hagan satisfied from a procurement point of view that it is an appropriate model and that the office is not obliged to advertise and invite expressions of interest from competent people able to provide the service?
Mr. David J. O’Hagan
That is done as well, in so far as there is a standing request on the Attorney General's website directed to counsel who wish to apply. They can download the application form and submit their request to the Attorney General. What I have been describing is just the initiative within our office.
The selection of a particular counsel to undertake a task is at the discretion of the Attorney General, based on his knowledge of the competence of the particular counsel, the nature of the work involved and the characteristics of the file.
Mr. David J. O’Hagan
Indeed, and the availability of counsel.
Mr. Liam O’Daly
The Attorney General is subject in these matters to the provisions of section 7 of the Prosecution of Offences Act 1974, even though that deals with the Director of Public Prosecutions, DPP. That is the statutory provision that governs this matter. The Attorney General must ensure that the barristers briefed by him in his official capacity are chosen from among those barristers who have indicated their willingness to so act or advise. That is the first step under the statutory procedure and, as the Chief State Solicitor said, there is a standing invitation on our website, and it is advertised in the Law Library and the Four Courts, for barristers as they become qualified and so forth to make it known that they are willing to take State work. Section 7 then dictates that the distribution of such work must be done in a fair and equitable manner, taking one year with another, and having regard to their suitability with regard to a particular matter and also to the public interest. Obviously suitability means to the particular type of case.
The process within the office, as Mr. O'Hagan said, is that each year we review the panels. The panels are formulated from those who have stated their wish or desire to do State work. It does not mean that all of them would necessarily get on panels. The Attorney General would look at the forms that are submitted annually, the indications of willingness. Generally, the panels are very full in different areas. As the Chief State Solicitor said, if a barrister has been briefed by the Attorney General, his or her performance is monitored and the question of further work is always something which is keenly examined. Obviously, we must get the best people, particularly in the highly sensitive cases with which we deal. The quality of service is important. Equally, we look at value for money from the point of view of costs and so forth. It is also necessary for us to have due regard to specialised expertise. Some barristers might well be able to do some of the more common or garden work we might have but for some of the very rarefied work, if one can call it that, we must look at the high end of the bar and sometimes that comes at an extra cost. Those decisions are made by the Attorney General.
With regard to setting the fee for a particular——
Before moving on to that and with regard to the procurement issue Deputy McGrath has raised, Mr. O'Daly said he is satisfied that procurement practices are followed.
Mr. Liam O’Daly
We are satisfied.
Is it guidelines or a code of practice?
Mr. Liam O’Daly
First, it derives from section 7 of the 1974 Act. That is the statutory provision by which the Attorney General must abide. It provides: "The Attorney General shall ensure that barristers briefed by him in his official capacity ... are chosen, from amongst those barristers who have indicated their willingness to so act or advise, in such manner as to effect a distribution of such retainers amongst them that, in the opinion of the Attorney General, is fair and equitable taking one year with another, having regard to their suitability in relation to any particular retainer, to the public interest and to the distribution of retainers under subsection (2) of this section." It is not so much procurement, in the sense of tendering and so forth in this respect; it is governed by that section.
Barristers make known their willingness to act for the State. Not all barristers will act for the State because, as the Chief State Solicitor said, we do not pay as much and some of them will not act for the State because of that. Having made known their willingness to act for the State, their suitability, expertise and so forth is adjudged and panels are formed. If they are good at doing asylum work, that might be their expertise if put on the asylum panel. The panels are reviewed and the performance of counsel is continually reviewed by both our office and the Chief State Solicitor's office.
With regard to the appointment of legal representatives to the tribunals, what consultation took place between you and the chairmen of the tribunals?
Mr. Liam O’Daly
It is in the Comptroller and Auditor General's report. In many cases the tribunal chairmen appointed their counsel.
Are you happy that was good practice?
Mr. Liam O’Daly
We certainly do not believe there was a problem arising from that. Nothing has necessarily caused a difficulty. The Chairman will see in the Comptroller and Auditor General's report that many of the counsel were appointed by the tribunal chairmen.
Is the Department of Finance happy that proper guidelines in procurement policy were adhered to?
Mr. Dermot Quigley
Yes, we are. In connection with the tribunals, it was mentioned in the testimony on 2 July by Mr. McCarthy that matters such as that are decided by the sole member of the tribunal. It is for the tribunal member to decide on the counsel.
However, Mr. Sean Aylward, who gave evidence at the same meeting, said that the customs and practices of the legal profession were followed and that there was no tendering process. Are you happy that the customs and practices of the legal profession comply with good procurement practice, as set out by the Department of Finance, particularly for such big jobs and jobs of such duration? We are not talking about once-off legal representation here but jobs which have lasted, with hindsight, more than a decade.
Mr. Dermot Quigley
The word "hindsight" is crucial. When the tribunals were established, it was never envisaged that they would last so long or that the costs involved would be as high. It is a measure of the Government's reassessment of the situation that, for example, a tribunal of inquiry Bill is before the Dáil at present. It will make substantial changes to the system of procurement by tribunals. In addition, as was pointed out by the Comptroller and Auditor General in his report, a working group on legal costs has been set up and a legal costs implementation advisory group has also been established. The future treatment of tribunals and commissions of inquiry will be quite different from the past. The appointment of counsel for the tribunals was a matter for the chairman or sole member of the tribunal.
In hindsight, was that a good decision?
Mr. Dermot Quigley
I am not really in a position to comment on that because the decisions that were taken by the lone members or chairmen of the tribunals were for them to take. It is important to stress, as was stressed at the meeting on 2 July by the Secretaries General, that in many cases the brief of the relevant Departments was to facilitate the operation of the tribunals but the main decisions about the operation of the tribunals lay with the chairpersons of the tribunals.
Is there not a difference between facilitating and giving them a blank cheque?
Mr. Dermot Quigley
The tribunals were set up under arrangements decided by the Government.
We are speaking of procurement at this stage. Did the customs and practices, as referred to by Mr. Aylward, comply with good procurement practices?
Mr. Dermot Quigley
They did comply with good procurement practices. Certainly, the Department of Finance did not raise any objections. The procedures that took place, in our view, did not breach the procurement guidelines.
Nobody forecast that they would last 12 years in some cases, but we knew that at least they would last 12 months.
Mr. Dermot Quigley
As I said, looking back on it, the costs involved have been a great deal higher than anybody would have imagined, but the procurement practices decided upon at that the time were not in breach of guidelines.
I will continue on that vein. The issue is that a number of counsel have been paid millions of euro of taxpayers' money without having to go through any process regarding the appointment to that position. It is unsatisfactory to state that it was a matter for the tribunal chairman. The tribunal chairman is not above the law either. In one case, one counsel has been paid approximately €8 million to date without having to go through any selection procedure or any procurement involved. It is fine to state in hindsight one would have done it differently, but it is unsatisfactory and we need further clarity on that issue. Clearly, there must be a fundamental change in the way that is managed, but it is unsatisfactory.
On the fees being paid for counsel working for the Office of the Chief State Solicitor and the Director of Public Prosecutions, there is not a set schedule of fees for individual items of work and Mr. O'Hagan must have regard to the Department of Finance guidelines to which he referred. Can he outline how a fee is agreed, how much of it is agreed in advance and the basis of doing so?
Mr. David J. O’Hagan
Our practice would be not to agree a fee in advance. We do not operate a scale as such because we think that such may be anti-competitive. What we have are clear Department of Finance guidelines which were given to us in 2002 and which have not changed substantially since. We have had to apply them to the work that has developed within our office since that time.
When a fee note comes to this office, it is examined to look at the work done, the quality of the work, the outcome, the standing of counsel and the performance of counsel. We try to apply the guideline figures given to us by the Department of Finance and we do that as fairly as we can in any particular case. Currently, we make our reduction of 8% which we are required to do, but if we feel in any particular case that the guideline figure might be too high, we have no hesitation in reducing that.
Mr. Donoghue mentioned that the total reduction in fees to date through a combination of the various reductions is in the order of 22%. Has that been applied in Mr. O'Hagan's office as well?
Mr. David J. O’Hagan
I think there is a difference in how fees are applied in the Director of Public Prosecutions' office and in our office. I think they have guidelines which would be closer to a scale and that is because they have a more limited scope of work. Because of the much broader remit of work within the Chief State Solicitor's office, it is not as possible to do that. We have achieved a reduction.
The best way we can demonstrate the reduction is on overall expenditure. If one compares overall expenditure for 2009 against expenditure for 2008, having regard to all the measures which we applied, we secured a reduction of 14.7%. That was a reduction from a situation where the trend in costs was upwards in any event. Year on year, the trends were up and we turned that around. We secured a reduction on outturns of 14.7%.
I want to ask both Mr. O'Hagan and Mr. Donoghue about the length of time it takes to process files. I understand there is a fundamental difference between the files. Mr. O'Hagan mentioned in his introductory comments that in 2008 his office closed off 3,430 cases while opening 5,400 new cases. There was a net increase in his caseload as such, with work continuing on 22,700 cases.
Mr. David J. O’Hagan
Yes.
Typically, how long does it take, on average, from a case being opened to it being concluded?
Mr. David J. O’Hagan
Some cases can be dealt with quite quickly. Something like a habeas corpus can open on Monday and be closed on Friday. One would have cases, like a European arrest warrant which went through quickly, which could be closed within 12 months. One might, however, have an appeal which would cause that matter to remain open for two or three months.
There would be a difference between, let us say, some of the work we would do in the District Court, such as District Court prosecutions which go through fairly quickly, and, say, High Court cases. A High Court case, from inception to conclusion, goes through quite a number of steps. It can take two or two and a half years to get to hearing. One may be waiting a time then for the delivery of a judgment. There may be a question of an appeal, which can extend a timeline of two and a half years to, maybe, four years. We try to get through cases as quickly as we can.
There can be strategic reasons as well why our opponents seek either to bring a case on quickly or, in fact, to delay a case. If we are unhappy as to reasons a case is being delayed or if we find a case is not being prosecuted against the State quickly, we have a policy of attempting to have those cases dismissed for want of prosecution, but we do that selectively and carefully in particular cases as a matter of tactic.
It is difficult to say that a case would be dealt with in three months, six months or 12 months. Realistically, one would be talking about the life of cases being between one year and four years, with many cases being dealt with well within one year and some cases lasting more than four years.
Mr. Donoghue mentioned in his report he received 16,140 files in 2008. How long does it take before a decision is made on those files as to whether to initiate prosecutions?
Mr. Barry Donoghue
The output statement which we submitted to the committee shows that we have targets on decision making, which are to have 40% of the cases dealt with within two weeks, 50% within four weeks and 75% within three months. In terms of directions issued, those targets have been met. Within two weeks, 42% of the cases sent to the office were directed on, within four weeks, 62%, and within three months, 84%. Obviously, some cases can be complicated and involve requesting further information from the investigating agency, the Garda Síochána or another agency, and can take longer.
In terms of cases processed in the courts, that can depend on the particular court in which the case is commenced. In the Central Criminal Court the turnaround time has greatly improved. In some parts of the country, in the Circuit Court outside Dublin, there can be considerable delays in finalising cases and on many occasions the President of the Circuit Court, who is conscious of this, has brought in an extra judge so that the lists can be processed in time.
As a matter of interest, Mr. Donoghue mentioned in his comments that the largest brief fee paid to senior counsel is approximately €8,600 for a murder case, which covers the preparatory work involved and the fee for the first day of the trial. Beyond that, is it a per diem rate?
Mr. Barry Donoghue
Yes. There is a per diem rate. At present, it is just over €1,800 and it will be reduced shortly to approximately €1,700.
I have a few further questions. With regard to the Vote for the Office of the Attorney General, contract legal expertise amounts to €1.1 million and consultancy services amount to € 348,000. I ask for an overview of this expenditure.
Mr. Liam O’Daly
This would include contract drafters, principally. A number of draftsmen within the office are contracted from abroad. They are needed for the office to meet the drafting requirements of the Government's legislative programme. They are the principal outside legal expertise. There may be some other element. A small element was the statute law revision project in 2008. The lion's share of this expenditure, €930,486, was for contract parliamentary counsel. They tend to be extremely experienced people who are high level draftsmen and a number of them are still in the office.
I have a final question for Mr. O'Hagan with regard to incidental expenses of €1.34 million in 2008. I ask for an overview of these expenses. I ask for information on the provision for external legal services of almost €500,000 which was not spent.
Mr. David J. O’Hagan
I understand the Deputy's first question relates to a breakdown of miscellaneous expenditure. I can give the headings and the figures if the Deputy wishes. I will go through the headings first. The headings are bank interest and charges; prompt payment interest; cleaning services and materials; catering; advertising; water supplies; off-site storage; recycling and waste management; office plant rental; and legal case — I am not quite sure what this means — eye test and medicals. These are the routine costs of running an office.
What about the provision for external legal services which was not spent?
Mr. David J. O’Hagan
External legal services relate to the cost of using the local State solicitors outside of Dublin in cases of ministerial prosecutions. As we were in the process of concluding an agreement with them, not all bills were received on time. In my view, in respect of the year under consideration, we are unlikely to be incurring that level of cost for the service but currently we probably would. That is a provision in respect of prosecutions brought in the District Court down the country where we cannot really afford to send staff from Dublin. These prosecutions may be ministerial prosecutions brought by the Minister for Agriculture, Fisheries and Food or the Department of Social and Family Affairs as these are commonly arising prosecutions.
Before I call Deputy McCormack, I have a number of questions. I have a question for Mr. O'Daly of the Office of the Attorney General. The subheads show expenditure of €1 million on incidental expenses. What are these expenses and why are they not categorised?
Mr. Liam O’Daly
In the case of 2008, it is broken down as follows: €14,266 for official entertainment; €218,154 for staff training and development; €7,220 for refund of training fees; €10,415 for membership fees of various legal organisations; €41,631 for legal training conferences and various others; €458,684 for publications; €107,774 for miscellaneous electronic ISP updates, service contracts, and work permits; €41,286 for miscellaneous advertising; €27,969 for miscellaneous catering; €26 paid in prompt payment interest; and €89 for exchange gain or loss accounts.
I ask for a list of those expenditures.
Mr. Liam O’Daly
I will provide that list for the committee.
Mr. David J. O’Hagan
It has just been brought to my attention that I excluded some items from my answer. They are large items. I should have also included staff training and development, security and library services. What I gave in the breakdown were the miscellaneous costs but these items of staff training and development, security and library services also comprised the items within incidental expenses.
We have heard evidence in response to Deputy McGrath's questions about a reduction in legal fees from the different agencies. We heard previous evidence with regard to tribunal fees that legal representatives looked for substantial increases some years ago and there was an implied threat that they would walk if their demands were not acceded to. In view of the across-the-board cut in legal fees in recent times, has there been a pro rata cut in legal fees for lawyers servicing the tribunals? Has any effort been made to renegotiate fees downward?
Mr. Dermot Quigley
As regards the tribunals which are currently in existence the previous fees are still in existence. The change in the rate of legal fees applies to all inquiries, commissions, etc. which have been set up since 2006 but the rates for the three main tribunals are unchanged. The Government made a judgment that the new rates could not be applied to the three major tribunals in circumstances which the Chairman has laid out, namely, the assessment that the tribunals' work would be gravely disrupted if the existing tribunal counsel were to desist from the work of the tribunals.
Does Mr. Quigley believe they have us over a barrel? We heard from Mr.Donoghue that generally speaking, there has been a reduction of 22% in fees across the board and there has been no attempt by the Department of Finance——
Mr. Dermot Quigley
I should have added that the 8% cuts in 2009 and the cuts proposed in 2010 apply to counsel fees. I understood the Chairman's question to mean the overall, much higher rates existing for the three tribunals. The successive cuts of 8% are being applied but the substantial reduction in rates which was decided upon with regard to new tribunals was not implemented with regard to the three major tribunals.
I take it there has been no reduction in fees in the three main tribunals.
Mr. Dermot Quigley
The two tranches of 8% have applied. The Government decided last year that the legal fees should be reduced by 8% and a similar decrease is to be effected in the current year.
A number of issues arose in previous committee hearings. At a previous hearing an issue came up concerning evidence taken in London for the Moriarty tribunal. There was an astounding €450 an hour paid to Ms Ruth Collard for evidence given in London. Does Mr. Quigley have any fears that this might be a precedent or benchmark for future third-party costs in tribunals? Do we have a sleeping giant here as a result of the precedent of those payments?
Mr. Dermot Quigley
I do not think that I would be competent enough to make an assessment or answer the question along those lines. Certainly the Department, itself, does not have any view on the subject. Perhaps my colleagues in the other offices may wish to comment, but certainly the Department of Finance would not be in a position to——
Has the Department of Finance estimated the potential third party costs for the tribunals? It must have a tranche of money put aside for the day when third party costs will be submitted. If it is to be based on €450 an hour, it is quite frightening to say the least. Is anybody qualified to answer the question?
Mr. Liam O’Daly
I cannot really talk about the ongoing expenses of the Moriarty tribunal.
I just gave it as an example. I am asking whether a tranche of money has been set aside for the day when third party costs are claimed and have to be conceded. I gave the example of the €450 per hour that was paid. Will that be treated as a precedent and if it is, what is the estimate for third party costs?
Mr. Dermot Quigley
It is important to emphasise that third party costs have not yet been decided upon.
I know that.
Mr. Dermot Quigley
This is a decision that will be taken by the tribunal. On the question the Chairman asks of whether the case he mentioned would be a precedent, it would not be for me to answer in the sense that it will be a matter for decision by the tribunals. On the question of allowing for costs, budgetary allocations for the various Departments are set down year by year. When the third party costs are decided upon, agreement has been reached on their level and the details have been hammered out, it will then be incumbent on the Government to provide the money involved. As of now, the exact level of those third party costs has not been decided upon so the Government is not in a position to allocate moneys. It is probably fair to say too that the actual expenditure of the moneys involved will extend beyond the current year so that the decisions to be taken on the level of resources to be applied in this area are likely to be made not just in the current year but also in successive years. However, there is not any pot of money being set aside by the Government at the moment. When the expenditure is incurred it will be part of the normal expenditure by the particular Departments involved — the Department of the Taoiseach, the Department——
Does anybody in any of the agencies and Department represented here today, on behalf of the taxpayer, have a view on the level of that fee and the possible precedent that has been set?
Mr. Dermot Quigley
Again I wish to emphasise that that particular level of fee was decided upon in the context of the tribunals by the tribunal itself. It is not for my Department to express a view on it simply because it is a matter for the tribunals and they are operating within their own prerogative. It is not for the Department of Finance to express a view on the subject.
I have another question on the moneys being claimed, for example, in the Moriarty tribunal. A report in The Sunday Business Post stated that there was a daily rate of €2,500 per working day up to a total of 304 working days in one case, which is 50 days more than the official working days in a year. How are attendance records and fees monitored by the Department of Finance? In other words, what scrutiny takes place over those claims?
Mr. Dermot Quigley
It is important to put on record the respective roles of the Department of Finance and other Departments. The Moriarty tribunal was set up under the auspices of the Department of the Taoiseach. Monitoring of the costs of the tribunal is a matter for discussion between the Department of the Taoiseach and the tribunal. Similar arrangements apply between the Department of the Environment, Heritage and Local Government and the Mahon tribunal. The Department of Finance does not get involved in the monitoring of the detailed expenditure by the tribunals. After all, the moneys involved are accounted for by the respective Accounting Officers of the Departments concerned and that is obviously why they were called before this committee on 2 July.
Is Mr. Quigley saying that this is a matter for the Department of the Taoiseach?
Mr. Dermot Quigley
I am saying that monitoring of the detailed expenditure is a matter for the Department of the Taoiseach, obviously in consultation with the staff of the tribunal.
I have questions for Mr. O'Hagan. Solicitors employed at the tribunal are being paid approximately €1,000 a day. Was the Office of the Chief State Solicitor ever approached by a tribunal chairperson with a view to utilising the solicitors in that office to carry out the work of the tribunal rather than going into the private sector?
Mr. David J. O’Hagan
Yes. I do not think we were always approached by the tribunals but we certainly made solicitors available at different times to act for the tribunals, but obviously over a period of the duration of these tribunals, solicitors have moved on. There have been breaks at different stages. I think that as these breaks occurred it was a matter for tribunals themselves to decide where they would source a solicitor. We would have taken the view that that was entirely a matter for them.
What is the average salary of a solicitor in the Office of the Chief State Solicitor?
Mr. David J. O’Hagan
In the current terms, somebody who is just starting would start on about €43,000. That would be for somebody who is just starting on day one.
How much?
Mr. David J. O’Hagan
About €43,000.
That would contrast with a practising solicitor who is employed by one tribunal at €1,000 a day.
Mr. David J. O’Hagan
I think if one was looking at somebody who was at principal level one would be talking about somebody who might be on €100,000 per annum.
Has Mr. O'Hagan any views on that? Does he believe that his staff have been underutilised?
Mr. David J. O’Hagan
My staff have been very busy.
I mean in the context of the tribunals.
Mr. David J. O’Hagan
I would not like to comment on the reasons for employing other solicitors or the rates of pay. I have no real information on that. What I would say by way of background is that I have become more inclined to say we should not be providing solicitors to act for tribunals. That has become the policy of my office for different resource reasons.
If Mr. O'Hagan had a complement of solicitors necessary to service tribunals, would he agree that would be the best way to do it?
Mr. David J. O’Hagan
It might not be.
Why not?
Mr. David J. O’Hagan
I would have other reasons for saying that.
Regardless of whether they are employed directly by the tribunal or the Office of the Chief State Solicitor, they would come from the same training background.
Mr. David J. O’Hagan
Yes.
They would have approximately the same experience.
Mr. David J. O’Hagan
Yes.
Why does Mr. O'Hagan not want to provide solicitors?
Mr. David J. O’Hagan
It is my own view of a perception of a conflict of interest. It is something I would try to avoid. I do not believe it has arisen in the past, but it is something I would be anxious to avoid so that absent consideration of costs, I would perhaps in many instances look more favourably on a situation where it was not a member of my office who was active at the tribunal. There are many competing views on that as well.
My concern is about paying €1,000 a day for a practising solicitor over a period of time when legal resources were available in the office.
Mr. David J. O’Hagan
Perhaps I expressed my view on the question of cost.
A conflict of interest.
Mr. David J. O’Hagan
It has not arisen in the past but it is a perceived conflict and I am anxious to ensure it was not an issue.
At a meeting of the PAC on 2 July 2009 the Accounting Officer in the Department of the Taoiseach said that the question of the selection of counsel to act for the State was something that was kept under close review by the Office of the Attorney General. Has that close review resulted in any change since last July?
Mr. Liam O’Daly
Is that the review on the selection of counsel for litigation?
Mr. Liam O’Daly
As was explained on the panels and those who are engaged by the State in litigation, we always review the performance of counsel as to their competence to do work. We have a number of panels for different types of work and specialisms. We are always looking to see whether we can get good people and we examine how they perform when they do get the work. In that sense there is always review.
Has there been some change since July?
Mr. Liam O’Daly
In respect to the statement quoted by Deputy McCormack, it was always the situation that we kept the matter under review.
I note that Mr. O'Donoghue said that like everywhere else, there are no vacancies at present. Is there an embargo on the recruitment of staff?
Mr. Liam O’Daly
From the point of view of the Attorney General's office, there are vacancies and we are filling those that have arisen from the point of view of the Parliamentary Counsel's office and advisory counsel. We are not doing too badly in that regard.
Does the Attorney General's office adhere to the practice of paying junior counsel two thirds of the fees of senior counsel, irrespective of their volume of input?
Mr. Liam O’Daly
There is a convention and the scales we have on litigation do not necessarily operate on that basis.
What does it depend on?
Mr. Liam O’Daly
On what the junior counsel do. If the Deputy is talking about a brief fee, it is true that as a rule of thumb the two thirds rule is adhered to by the Bar. However, it is not necessarily done that way. We look at the work that was performed by the junior counsel.
To return to my previous question, how are vacancies at the Chief State Solicitor's office filled? Does the Public Appointments Service have any say in the matter?
Mr. Liam O’Daly
Vacancies in the Attorney General's office have to go through the Public Appointments Service.
Who sets the extraordinarily high level of fees to which reference was made earlier?
Mr. Liam O’Daly
To which fees in particular does the Deputy refer? Is it in the context of litigation?
Who sets the rate for the legal fees?
Mr. Liam O’Daly
On the fees for litigation, I do not accept that the guideline scales we have are extraordinarily high. As was pointed out by the Chief State Solicitor, not only do we get a substantial discount from private sector rates but, again, we have been applying the 8% discount on it also. From that point of view State fees for litigation are not extraordinarily high and as the Chief State Solicitor said, following his analysis we are getting considerable value for money compared to the private sector.
Mr. Justice Barrington said in regard to tribunals that the State was the key driver in setting exorbitant legal fees because of its failure to address the issue.
Mr. Liam O’Daly
That is the judge's opinion.
I would take great heed of his opinion. The Chairman referred to three senior counsel at the Moriarty tribunal being paid €2,500 a day for an extraordinary 304 days in 2008. Someone else said the Taoiseach's office was responsible for that. Did those people work all of those days? Did they have time to go to mass or to do anything else?
Mr. Liam O’Daly
I cannot make any comment on that.
Could they have been putting Mammon before God?
Mr. Liam O’Daly
I do not know whether they worked on Sundays.
Is there a system of checking? Deputies now have to clock in before getting paid for attendance. Was there a clocking in system in place to ensure the individuals worked for those 304 extraordinary days? We are only expected to work for 150 days in the year in the Oireachtas apart from our constituency work. We think we are hard working.
Mr. Liam O’Daly
The bills from the Moriarty tribunal for counsel go to the Department of the Taoiseach. We do not see them.
In that case I will have to ask a question of the Taoiseach.
Mr. Liam O’Daly
Perhaps.
For example, one barrister worked 900 days over three years. He took four days a year off compared to the rest of them. That rate of pay seems to be extraordinary. What were they doing for those 304 days?
Mr. Liam O’Daly
I am afraid I could not comment on that. I do not know anything about those figures. They do not come into the Attorney General's office.
How many of those 304 days was the tribunal sitting?
Mr. Liam O’Daly
Does the Deputy refer to last year?
In 2008.
Mr. Liam O’Daly
I do not have figures for the number of days.
Could Mr. O'Daly get the figures?
Mr. Liam O’Daly
I am sure they can be supplied to the Deputy from the Department of the Taoiseach.
Is it correct that the Moriarty tribunal sat in public session for an average of 20 days in each of the past three years? Surely Mr. O'Daly would know that.
Mr. Liam O’Daly
That is probably right but I do not know for sure.
That suggests that nobody knew what they were doing for 284 days but they were paid €2,500 a day for it anyway. It is extraordinary that such a thing could happen in this day and age.
We are flogging a dead horse because the Taoiseach's office is required to answer the question. We intend to get the answers.
I will pursue that with the Taoiseach's office. Another matter of grave concern is a case where an extra €1 million was paid out because of a typing error in the Department of the Taoiseach when counsel were paid €2,500 instead of €2,250.
We dealt with that previously.
Was the €1 million paid in error ever repaid?
Mr. Liam O’Daly
Again, that is not something I can answer.
I know from a reply by the Taoiseach to a question asked in the Dáil by my party leader on 5 March 2009 that there are no arrangements to recover the money as that was not considered necessary. That is a shocking example for lawyers to be setting, that they collected money to which they were not entitled and did not pay it back. If that happened in any other walk of life it would be deducted from a person's wages for the following week. We have to rely on those lawyers from time to time. It is extraordinary that they would be overpaid by €1 million in error and that the money would not be repaid. Does Mr. O'Daly not consider that extraordinary?
Mr. Quigley should be asked that question as he is responsible for finance.
Does Mr. Quigley not think that is extraordinary?
Mr. Dermot Quigley
All I can do is to repeat the point of view put forward by the Attorney General's office that the decision not to recover fees was decided upon by the Department of the Taoiseach in consultation with the tribunal. The error may have been made but the moneys were transferred to the relevant people. Quite obviously, the people involved were not prepared to recover them. One would have to ask the Department of the Taoiseach whether the costs could be recovered.
Does Mr. Quigley know the taxpayers are being milked? His Department and the Department of the Taoiseach do not seem to be concerned about it. All public representatives have constituents who are social welfare recipients who might be overpaid by €20 in error for a six-month period and who are consequently threatened with legal action.
They are not threatened with legal action at all——
Are we compromised, are we over a barrel and are we afraid people will walk from tribunals if they do not get what they are looking for?
In this case, it is not a matter of their getting what they are looking for but getting more than they were entitled to. The Chairman referred to social welfare recipients. In their case, the money would be deducted from their next payment. A mechanism exists for recovering the €1 million paid due to an error in the Taoiseach's office. I am asking my question on this matter at this meeting because we did not get any satisfaction when we asked the Taoiseach. We must ask, therefore, why there was never an attempt by anybody to recover the money. Why were those concerned not ashamed of it?
Mr. Dermot Quigley
There are two items to consider. I draw the attention of the committee to the fact that, on 2 July, the Secretary General of the Department of the Taoiseach said:
The overriding policy concern was to secure the continuity of the tribunal, which was dealing with significant and sensitive issues at a particular sensitive juncture. The Department decided, having regard to all the factors mentioned in previous conversations, that it was appropriate to retain the payment at the €2,500 level.
That is the position as it stands.
We have taken it as far as we can go with Mr. Quigley. There is a fear factor. The Department of the Taoiseach is afraid that if it claims what it is legally entitled to claim, there will be a folding of the tribunals. They are compromised. That is my interpretation.
Mr. Dermot Quigley
I should emphasise that the question of whether they were actually entitled to recover costs would probably be a matter for a legal——
These are costs that should never have been paid in the first place. How would that affect the continuity of the tribunal? The €1 million should never have been paid in the first place and was paid in error. Considering the statement that there was fear in the Taoiseach's office that recovering the moneys would affect the continuity of the tribunal, I must ask whether the error was deliberate in order to give those on the tribunal an extra €1 million.
That is out of order, Deputy.
I am asking a question; I am not stating a fact.
The Deputy cannot allege that it was deliberate.
I am only asking the question and if I cannot get an answer to it, I do not mind.
The Deputy cannot make an assumption.
I believe I am entitled to ask the question. From what has been said to me, I now understand that no attempt was made to recover the money because doing so might have affected the continuity of the tribunal. Therefore, I have to ask how it came about in the first place. It seems extraordinary to me.
We are asking the wrong person at this stage.
This is why I am on the Committee of Public Accounts. We spend a lot of time here waiting for the opportunity to ask questions. I have been here since 10 a.m. and it is now 12.15 p.m. I have an opportunity and an entitlement to ask those questions because this is the only place where we can get answers to them.
The Deputy is asking the wrong person, as Mr. Quigley said.
Is the Chairman saying I am asking the right question of the wrong person?
He is putting the right question to the wrong person.
The right question to the wrong person. I will try to do a bit more homework in future.
Is the Deputy finished?
I am not finished but I am giving up in protest.
The Chairman has covered a lot of ground regarding the issues that arise in respect of the tribunal. I have been in the Dáil and missed the earlier proceedings. Who settled the fees for counsel at the tribunals? Who was involved in settling on the figure of €2,500 per day?
That was answered before.
On what basis was it answered?
It was not answered at all.
Mr. Liam O’Daly
Unfortunately, as I made clear at the beginning, we are not here to deal with that Vote. We were here to deal with the Vote of the Office of the Attorney General. I am precluded from giving an account of any of the advice such as might have been given to Departments on those issues which are in the Comptroller and Auditor General's report. As I said at the beginning and according to the letter from our office in September, the matters that pertain to the report of the Comptroller and Auditor General as to tribunals are not matters concerning the general administration of our office. Counsel fees for tribunals do not come from our Vote. From that point of view, I would not be prepared to deal with them today.
Despite the fact that the then Attorney General, Mr. Michael McDowell, settled the fee, if my understanding is correct.
Mr. Liam O’Daly
I would not say anything about it one way or the other because that does not concern the general administration of our office.
Essentially, it is a case of the parties present today, be they from the Department of Finance, the Office of the Attorney General or the Office of the Chief State Solicitor, passing the parcel to the Taoiseach's office to deal with these issues.
Mr. Liam O’Daly
No, I do not know if that is fair because we co-operated regarding the report of the Comptroller and Auditor General. As I said, in the letter written to the——
What the Comptroller and Auditor General does in his report and what he considers as his opinion are separate to our work. One must differentiate between the role of the Comptroller and Auditor General and that of the Committee of Public Accounts. Today we are present to ask questions of behalf of the committee members and the taxpayer. If Deputy O'Keeffe asks a question, he should be entitled an answer in so far as this is possible within the constraints expressed earlier.
Mr. Liam O’Daly
I understand. I remain under those constraints. I am here to deal with the Vote of the Office of the Attorney General. Those moneys to which Deputy O'Keeffe is referring are not from the Vote of the Office of the Attorney General.
I understand the point Mr. O'Daly is making. Our concern is that the moneys, irrespective of the channels through which they flow, come from the pocket of the taxpayer. We represent the taxpayer. Sometimes it is a little Byzantine trying to follow the flow of money through different channels. I am expressing a sense of outrage on behalf of the taxpayer that somebody could be paid such an enormous sum for a job that was supposed to last six or nine months and which has now lasted for 13 years. The daily rate settled upon was possibly applicable to a short-term job but the job has now turned into what is nearly a lifetime job. In the interim, the rate increased by arrangement through the Office of the Attorney General.
Mr. Liam O’Daly
I believe it is described in the report of the Office of the Comptroller and Auditor General as being done with the benefit of a cost accountant's report.
The cost accountant I used to engage when I acted as a solicitor dealt with figures that were applicable to a court case that might last a day, week or two weeks. The rates of pay for someone engaged in concentrated action in open court for a day, a week or two weeks are completely different from those for someone with a job which, for some, would nearly be regarded as a lifetime job.
Mr. Liam O’Daly
The point the Deputy made, which has been made by an official from the Department of Finance, is that nobody envisaged the tribunals would run for as long as they did. That is as far as I would go on the matter.
That is a fair point but halfway through the life of these long-playing tribunals the rates were substantially increased.
Mr. Liam O’Daly
I take the Deputy's point about litigation and tribunals. However, the professional opinion of a cost accountant was employed to advise as to whether these were reasonable. This is dealt with in the Comptroller and Auditor General's report.
I believe I am expressing the views of the majority when I say these figures are outrageous and an utterly exorbitant burden on the taxpayer. What lessons should be learned from how these tribunals have been run and the costs involved?
We will deal with that issue with the Law Reform Commission in the next half of the meeting.
Okay, but lessons have to be learned in the unlikely event we may have to establish another one of these monstrosities.
Has the Office of the Director of Public Prosecutions enough funding to do its job?
Mr. Barry Donoghue
As I said in my opening statement, there will be a challenge to the office to do its work within reduced resources. There has been a considerable reduction in fees to counsel. However, we still have a panel of expert counsel in criminal law who will continue to do the work.
There has been no fall-off in overall resources in the office. Two members of staff will be retiring some time this year. We will be in discussions with the Department of Finance to ensure resources are in place for the office to do the work given to it by the various investigation agencies.
While my former colleagues in the legal profession will not be too pleased with me, I am quite happy to see the Director of Public Prosecutions get the best bargain from counsel and solicitors. However, with such high levels of serious crime, we depend on the office to initiate criminal trials. Is the bringing to justice of criminals inhibited by a lack of resources or finances in the office?
Mr. Barry Donoghue
Not at the moment. It will be an issue in the future when people retire from the office and the question of filling of vacancies will arise. We will be in discussions with the Department of Finance then.
As of now, is the DPP adequately resourced?
Mr. Barry Donoghue
Yes, it is adequately resourced.
Are vacancies in the office filled through the Public Appointments Commission?
Mr. Barry Donoghue
Yes.
Does the DPP ever head-hunt staff?
Mr. Barry Donoghue
We advertise publicly for some positions such as that of chief prosecution solicitor. It was an open competition for all solicitors.
I want to set the record straight in case I said something wrong earlier. The sum of €1 million in overpayments was paid over six years. This was despite the fact the error was discovered just after the fax was sent to the lawyers agreeing to their fees. The clerical error happened in the Department of the Taoiseach. However, the advice from the Attorney General's office was that the higher rate would have to apply. I cannot understand this. Was it a bluff by the lawyers in that they would threaten to walk off the set if it was taken off them? I cannot imagine anyone walking off the set when earning €2,250 a day for as many days as one wanted. Have I the privilege to ask how did the Attorney General's office give such advice?
No.
Can I not ask that?
It was clarified earlier. No parliamentary question can be asked about the Attorney General's advice.
Yes, but we are not in the Parliament now.
We are.
We are in a committee.
These are not my rules.
All I can do then is put it on the record that, on behalf of the taxpayer, I am asking the question but not getting the answer.
I wish the Deputy could get an answer too.
What are the figures for costs recovery? How are they recorded? What is the largest sum in costs owed to the State?
Mr. David J. O’Hagan
I cannot give the Chairman all of that information now but I can supply it at a later stage.
In 2008, we recovered €500,000 in cash. In other instances, we pursue people who owe costs by placing a judgment mortgage on their property. Decisions have to be made in the light of circumstances as to how we are going to continue to enforce these cases.
In 2009, we recovered €3.7 million which included a large recovery of fees due to a tribunal, arising from a judicial review, and a large recovery arising out of the success by the State in large scale tobacco litigation.
Due to a continuing commitment to recovery, we are recovering more each year. Our policy is to be seen to be active in seeking the recovery of costs, not just for the sake of the recovery of the moneys, which go to the Exchequer as appropriations-in-aid, but also to send out the clear signal that if one sues the State and is not likely to succeed, one stands the risk of having to pay costs. Accordingly, the State is not seen as an easy target in litigation.
Does the Office of the Chief State Solicitor write off any costs?
Mr. David J. O’Hagan
It is not a case that we write off costs. We have to come to an assessment in some cases. Where we are lucky enough to have got an order for recovery of costs, we must make an assessment as to whether it makes economic sense to seek the recovery of the costs. We do not want to throw good money after bad. If we take the view that a particular litigant is a reasonable mark for litigation, we will pursue it.
Will Mr. O'Hagan provide a more detailed note to the committee on that?
Mr. David J. O’Hagan
Yes
Since the Department of Finance issued guidelines on foreign travel, all agencies are asked how much they have spent on foreign travel. How much has been spent by the Office of the Attorney General on foreign travel in the past 12 months?
Mr. Liam O’Daly
In 2009, it was €60,000.
Is that business or economy class flights?
Mr. Liam O’Daly
It is always economy class.
Can Mr. O'Daly give us an example of some recent foreign travel undertaken by the office?
Mr. Liam Daly
The Attorney General was in the Middle East for St. Patrick's Day, which was his most recent trip abroad.
What was the purpose of his visit to the Middle East?
Mr. Liam O’Daly
It was a working visit in the sense that he met many departments connected with trade and so on. That was the purpose of the visit. It was not a social occasion of any type. The objective of the visit was to make as many contacts and business connections as possible, with the help of the embassy there.
What type of business would entail the Attorney General talking to business connections?
Mr. Liam O’Daly
I know, for instance, that they were very interested in what we were doing as regards NAMA and so on. That comprised some of the discussions.
We are all interested in that and we cannot ask the questions.
Mr. Liam O’Daly
I was not there, and all I can say is that it was very much a working trip.
Nobody is suggesting otherwise, but we just wanted to know why the Attorney General was in the Middle East.
Are we finished with this section? We shall leave it at that for now, and I should just like to thank everybody who came before the committee this morning. Has Mr. Buckley something to add?
Mr. John Buckley
I have nothing to say on the Votes, but just want to clarify the situation as regards some of the discussion about attendance at the tribunals and so on. I am not going to go into detail, but what we found is set out in paragraphs 5.53, 6.52, 4.76 and so on in relation to the three tribunals. This information is available if anybody wishes to look it up.
As regards the sanctioning of the higher rates for the two senior counsel involved in the Moriarty tribunal, the fact that this was done on a personal basis is dealt with in paragraph 6.24. I will not go into the details, but they can be looked up in that section.
What does Mr. Buckley mean by a personal basis?
Mr. John Buckley
The Minister for Finance ultimately sanctioned the rates on a personal basis. It would not apply generally.
I thank Mr. Buckley. Is it agreed to note the Votes involved? Agreed.
I thank everyone again. We shall suspend for five minutes to allow people to take up their positions for the next session.
The witnesses withdrew.