Bertie Ahern (Dublin Central, Fianna Fail)

Last week, the Government acted in an effective and responsible manner and we achieved two things. First, we enacted new legislation to ensure that there would be no gap and, second, we successfully resisted the release of convicted prisoners from jail. These objectives were achieved in a matter of days. There is nothing the Government or this House could have done in advance of the Supreme Court judgment in the CC case to keep convicted criminals in prison. The House did not have any magic wand to do this. Once the Supreme Court struck down section 1(1) of the 1935 Act, it was only in the courts that the issue of the validity of previous convictions would be determined. A clear and effective strategy was put in place by the Attorney General and the Minister for Justice, Equality and Law Reform to resist applications for release by convicted prisoners, and that strategy succeeded. Only one prisoner was released under habeas corpus, but he is now back in jail, which as Deputy Kenny said is his rightful place. Another prisoner, Mr. Simon Murphy, withdrew his habeas corpus application this morning.

While there was a communication issue, it had no effect on the outcome of the Supreme Court decision. The lack of notification to the Minister and the Attorney General as the case proceeded through the courts, in particular when it was appealed to the Supreme Court, did not cause the State to lose the case. Deputy Kenny and everyone else in the House knows that. The case was vigorously defended by the DPP and the Attorney General. It was won in the High Court, but unfortunately we lost the constitutional issue in the Supreme Court. It is for the Supreme Court to make its decisions, and so be it.

When section 1(1) of the 1935 Act was struck down, we were not left without laws to protect our children, as was said last week. There is a host of such laws, including sexual assault, rape, inappropriate circumstances and false imprisonment. The Government would be rightly condemned for fashioning legislation without knowing what the Supreme Court would decide in the CC case. The number of options open to the court, including what was suggested by counsel to the DPP and the Attorney General, to preserve section 1(1) of the 1935 Act, was subject to a defence.

People assume that the Supreme Court's decision in the CC case was a foregone conclusion, but this is simply not so. There was ample US case law that would have resulted in section 1(1) of the 1935 Act being upheld. The 1935 Act was struck down not because of anything the Government did, but because this was the view of the Supreme Court on what our Constitution required.

As parents, legislators and public representatives, all of us were shocked at the events of last week. As I said here more than a week ago, we were deeply concerned at the hurt, fear and bewilderment caused to the many victims of child sexual abuse and their families. I thank everyone, including the Opposition, for their co-operation in having amending legislation enacted so speedily last Friday. There is a great sense of relief that the Supreme Court appeal against the release of Mr. A has been successful and that he is back in prison where he belongs. The Government recognises that there is a need for a much broader debate on the complex issues that arise for legislators in addressing the area of child protection. We propose to begin that debate through an all-party Oireachtas committee report. I have been looking at those issues and at what people said in the debates last week, and I am sure there are many more points to be made. There has been considerable emphasis on the lack of advance warning for Government members about the impending Supreme Court hearing on the issue of constitutionality. Undoubtedly, there was a communications failure on that issue.

A major issue arose here more than a decade ago about the operations of the Office of the Attorney General. The recommendations of the 1995 report of the review group on the Office of the Attorney General have been implemented by way of a number of protocols and practice directions within that office. The most important of these is the protocol on documentation for advisory counsel, which came into operation in April 2002. The first guideline in that protocol provides that where a matter with which one is dealing is legally significant or novel, politically important, sensitive or financially valuable, one must seek the directions of the Attorney General. Such matters are brought to the attention of the Attorney General by way of written submissions at several stages in the course of litigation so that the Attorney General's directions can be sought. The current Attorney General has updated these protocols on several occasions. In 2002, he put in place a system whereby he is required to be informed at least ten days in advance of the trial date of any significant case.

Shortly after the CC case was initiated in the High Court in 2002, the correct procedures were followed. The Department of Justice, Equality and Law Reform was sent a copy of the pleadings of 29 November 2002. The Director of Public Prosecutions recommended counsel on 5 December 2002, while the Attorney General took the preliminary step to nominate counsel to provide outside legal expertise to the DPP and the Attorney General. However, the procedures were not followed after that stage. Required submissions in writing were not sent to the Attorney General. Consequently, he was not informed and was not aware of the various stages of the case in the High Court or the Supreme Court appeal.

Therefore, during the period from 5 December 2002 to 23 May 2006, and specifically after the Supreme Court decision of July 2005, he was not informed of the processing of the case, his directions were not sought and no submissions were sent to him. This was a serious breach of those procedures. The Attorney General is satisfied that the only problem in this case was the human error which led to him not being informed in accordance with the existing procedures. These matters can be examined, be they as a result of human error or a systems failure. The counsel appointed by the Attorney General, together with the officials of his office and that of the DPP, defended the case vigorously and efficiently.

To avoid a similar error that might lead to breaches in procedures in the future, the Attorney General is putting in place further procedures. In addition, we are providing for a new independent rapporteur for the protection of children, who will report annually on standards in child protection legislation. I will make available to the House details of these and other initiatives that the Government will put in place. I have also invited a senior official in the Department of Finance to conduct a review of the implementation of existing procedures, with a view to making further changes that may be necessary in the future. I have considered this matter carefully. Following the difficulties of 11 years ago, three officials were asked to draw up and write the procedures. These issues were dealt with by the then Attorney General, Mr. Gleeson, the then Taoiseach, Mr. Bruton, and the then Tánaiste, Mr. Spring. It is now a matter of checking where the procedures failed. Mr. O'Sullivan from the Department of Finance, who is in charge of the relevant section, will carry out this check and will report back to the House in a few weeks. The special rapporteur for the protection of children will deal with these issues in the future — I have outlined the procedures — and the broader issues will be referred to an all-party committee.

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