Pat Rabbitte (Dublin South West, Labour)
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Question 1: To ask the Taoiseach if the approval of the Attorney General was sought by his Department in regard to the subcontracting out to private firms of the drafting of legislation; the number of occasions on which such consent was given; if the Attorney General is satisfied with the drafting of legislation outside his office; and if he will make a statement on the matter. [22145/04]

Trevor Sargent (Dublin North, Green Party)
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Question 2: To ask the Taoiseach if the Attorney General gave approval to the subcontracting out to private firms of the drafting of legislation; and if he will make a statement on the matter. [27998/04]

Joe Higgins (Dublin West, Socialist Party)
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Question 3: To ask the Taoiseach if approval was given by the Attorney General to the subcontracting out to private firms of the drafting of legislation. [30191/04]

Bertie Ahern (Dublin Central, Fianna Fail)
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I propose to take Questions Nos. 1 to 3, inclusive, together.

As outlined in a reply to a written parliamentary question on 29 September 2004, no legislation has been drafted for my Department outside the Office of the Attorney General so the matter of approval does not arise.

Pat Rabbitte (Dublin South West, Labour)
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What is the Taoiseach's view of the subcontracting out of legislation to be drafted, whether that of his Department or other Departments, on the instructions of the Department as distinct from the Attorney General? Since the Taoiseach's answer to me, which I took to mean that legislation was not being subcontracted out, Deputy Burton told me that the Central Bank Bill was contracted out at a cost of €1.5 million. Subsequently, before it went through Committee Stage, the Bill had to go back to the Office of the Attorney General to be redrafted. Does that matter require consideration?

Bertie Ahern (Dublin Central, Fianna Fail)
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I draw a distinction between statutory instruments and Bills. The Office of the Attorney General is not opposed to statutory instruments being sent out for drafting. It has recommended a list of people who are appropriate for Departments to employ in that regard because there is much drafting to be done and the statutory instruments are regularly handled in this way by Departments.

It is very rare for Bills to be drafted outside the Office of the Parliamentary Counsel. I asked my Department to check how many Bills were drafted outside that office over the five-year period since the beginning of 2000. There was not a great deal of checking to be done. Only two Government Bills, the Adventure Activities Standards Authority Bill 2000 and the Official Languages (Equality) Bill 2002, were drafted outside the Office of the Parliamentary Counsel. While those Bills were drafted outside the Office of the Attorney General and that of the Parliamentary Counsel, both were drafted by a former official in the latter office. No Bills were drafted in private practice. It should be borne in mind that over the period mentioned, 226 Bills were enacted.

An outside firm with special expertise advises the Department of Finance on the regulation of financial services, which relate to the Bill referred to by Deputy Rabbitte. As part of that advice, the firm prepared a sample draft of the Central Bank and Financial Services Authority Bill 2003. That was a substantial Bill with a large number of heads. The sample draft was presented to Government not as a Bill but merely as heads or the scheme of the Bill. The Bill itself was drafted by the Office of the Parliamentary Counsel.

The same situation pertained to the Unclaimed Life Assurance Policies Bill 2002, with an outside firm drafting the heads of the Bill for the Department in the form of a sample draft. The Bill itself was drafted by the Office of the Parliamentary Counsel.

These situations rarely arise. I have spoken on a number of occasions with the Office of the Parliamentary Counsel, the Attorney General and the two previous Attorneys General. They are not in favour of Bills being drafted by outside parties, a view I support. Their position is that whenever drafting is attempted within Departments or by outside agencies, the quality of the drafting is not of much use to them and is not satisfactory. They end up doing the drafting themselves. I do not wish to be unfair or uncharitable to the outside agencies, but such drafting is not satisfactory.

Pat Rabbitte (Dublin South West, Labour)
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The Taoiseach seems to be saying that where primary legislation was contracted out, work was done up to heads of Bill stage and the drafting then done in the Office of the Parliamentary Counsel. Can the Taoiseach be more clear? He has expressed the matter in one way. Another way of putting it would be to say the quality of the outside work is not up to scratch and that the drafting must be done by the Office of the Parliamentary Counsel. That is my understanding of the position.

Regarding the Finance Bill to which I referred, I am informed by Deputy Burton that the cost of contracting out its drafting came to €1.5 million. That is quite a mind-blowing figure for a single Bill, no matter how substantial or complex. If the Taoiseach agrees with the Office of the Attorney General that there should be a coherence of style and uniformity, it would be desirable that his writ should run with line Departments.

Bertie Ahern (Dublin Central, Fianna Fail)
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I do not disagree with the Deputy but we should be clear about it. There are three areas to be considered. There is no problem with regard to the drafting of statutory instruments being done outside the Office of the Attorney General, provided the drafting is done by people recommended by that office and who are seen as competent to provide the quality of drafting desired.

The Office of the Attorney General believes there is merit in the heads of Bills being drafted by people with legal qualifications in the various Departments. There are a number of such people in the top six Departments competent to draft heads of Bills and the explanatory matters surrounding them. There are some outside the Departments who have also done such work. My understanding is that such work is far better done within the office than outside it.

On the outside work — and the Central Bank and Financial Services Authority Bill 2003 was an enormous Bill — the office of the Parliamentary Counsel states that the distinction between a Bill and the heads of a Bill is important in the context of the Cabinet and Oireachtas procedures, as it sees them, and that the heads of a Bill are merely an outline of the policy objectives a Department wishes to achieve. The office of the Parliamentary Counsel holds the view that it is not involved in the preparation of the heads of Bills because policy formulation is a matter for Departments. If the policy formulation of the heads of a Bill is drawn up either inside or outside the office, the office of the Parliamentary Counsel lives with that. Without putting a tooth in it, that office would say that when one goes further than that, the quality of the work done by those outside is not up to a penny. I know there are people outside who will argue that it would say that, but in fairness to the people in the office of the Parliamentary Counsel, many of whom are beyond retirement age and many of whom have expertise both in this country and outside it, they do a specialist job. They do not believe we can give the work out.

Over the years I have asked why that is the case, and I am sure Deputy Rabbitte has experience of this too. While somebody can draft a Bill and even draft a Bill from the heads of a Bill, that does not give us the legislation. A parliamentary draftsperson must go back to God knows when — perhaps to the 1940s — to check the compatibility of the Bill with legislation in the 1940s, maybe with a Bill in the 1950s, amending legislating in the 1960s and perhaps cross reference the Bill with a Finance Act. The office feels that outside people do not do that to any quality. Experience over a long period and with many Attornies General seems to vindicate their position.

Trevor Sargent (Dublin North, Green Party)
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Can I take from the Taoiseach's reply that the Office of the Attorney General does not approve of outsourcing, and on an individual basis is not asked for its approval in advance of outsourcing? When legislation which has been outsourced is returned in draft form, is the Taoiseach satisfied there is a sufficient number of staff to make sure it does not progress in a flawed state? I think his colleague, the Leader of the Seanad, Senator O'Rourke, referred to the State Airports Bill as legally flawed and suggested that it had been drafted outside the House — by a leading firm of solicitors — and that that might be one of the reasons. This indicates that there may be a problem of staffing in the office of the Attorney General.

The Taoiseach said previously in a reply that there were seven vacancies. Can he give us an up-to-date position since four vacancies on the drafting side were referred to? There was an 8% increase in the Estimates for staffing. Is that one of the areas the Taoiseach proposes to resolve because it may put an end to outsourcing if there is an adequate number of staff in-house?

Bertie Ahern (Dublin Central, Fianna Fail)
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I do not wish to be repetitious but I have been told there were only two Bills outsourced in the past five years, and not too many before that. In a period when the House enacted 226 Bills, only two were sent out. Those two Bills were sent to a former official of the Office of the Parliamentary Counsel so, in effect, someone who did not understand the system did not draft a Bill. Statutory instruments have been frequently sent out, as have heads of Bills, including the case Deputy Rabbitte cited. It is not liked and where Bills have been sent out, the office believes it ends up, to a large extent, having to do the work again.

Drafting legislation is a slow process. It is a professional job and it takes a long time for someone to acquire the expertise. Some of the people in the office have been abroad but are now working in this country. I think there are approximately 13 people in the office and there might be one vacancy in that area of the Office of the Parliamentary Counsel.

I understand there are some 13 draftsmen in the Office of the Parliamentary Counsel and one vacancy. It is a specialised job in this country and elsewhere. The draftsmen frequently work contract hours and stay on in the role. A number of them are elderly and it is very much appreciated that they stay on. Although I am no legal expert, their role involves a gifted talent. Any politicians in any jurisdiction will tell you that they are treasured people. That is why they are asked to stay on and we are in the same position.

Trevor Sargent (Dublin North, Green Party)
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To which two Bills has the Taoiseach referred?

Bertie Ahern (Dublin Central, Fianna Fail)
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The two Bills were the Adventure Activities Standards Authority Bill 2000 and the Official Languages (Equality) Bill 2002. These were the only Bills in the past five years that were drafted outside the Office of the Parliamentary Counsel. Both were drafted by a former official of that office.

Joe Higgins (Dublin West, Socialist Party)
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I am relieved the Attorney General is not attempting to lead an MBO. There is a significant backlog of legislation in the Government's promised list and the usual response from the Taoiseach to queries about when this legislation will be brought forward is that there is yet no date. Does the Taoiseach agree that this points to a significant shortage of staff at the drafting stage? Admittedly, we would have been much better off if some of the legislation brought forward by the Government had never seen the light of day. I do not want to tempt fate. In regard to progressive or necessary legislation, however, the Government should be providing for sufficient staff in the office to ensure there is no backlog or unnecessary pressure on the existing staff. The outsourcing of work would then be unnecessary.

Bertie Ahern (Dublin Central, Fianna Fail)
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The point is that we are not outsourcing. One cannot simply advertise for positions in the Office of the Parliamentary Counsel and get people with sufficient competency to fulfil that role. Such people are recruited whenever they become available. There is usually a vacancy or two in the office and some excellent staff who are beyond retirement age are continuing to provide the service.

From the House's point of view, I can not recall when we were stuck for legislation. It is generally the other way around. There are Bills at various stages on the Order Paper and after the budget next week, the resources almost of a full-time person will be required for both the Social Welfare Bill and the Finance Bill for a long period of time. Other legislation also requires time. It is a matter of prioritising. The House is putting forward by a multiplier significantly more legislation than it did five, ten, 15 or 20 years ago. It is becoming more productive all the time in terms of legislation.