Brendan Howlin (Wexford, Labour)
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Question 2: To ask the Minister for Justice, Equality and Law Reform the steps he intends to take to improve communications between his Department and the offices of the Attorney General and Chief State Solicitor, particularly in regard to legal cases that may have implications for legislation introduced or operated by his Department; and if he will make a statement on the matter. [22153/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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There is no doubt that recent events have highlighted communications issues between the Department of Justice, Equality and Law Reform and the offices of the Attorney General, the Director of Public Prosecution and the Chief State Solicitor. An examination of communications within the Office of the Attorney General took place some years ago and it resulted in some administrative changes in that office. A further examination by a senior official from the Department of Finance is due to take place, as the Taoiseach informed the House yesterday. The Department of Justice, Equality and Law Reform will co-operate in every possible way with that examination and with the implementation of any new communications or consultation arrangements which may emerge from it.

Communications and recording of correspondence within the Department of Justice, Equality and Law Reform are constantly kept under review to see if they can be improved. I am satisfied the Department's procedures were followed correctly on this occasion. As the Tánaiste told the House recently, the Department was informed in writing by the Office of the Chief State Solicitor on 29 November 2002 that an application had been made to the High Court seeking judicial review to challenge certain provisions of the Criminal Law Amendment Act 1935. The proceedings in question are generally known as the CC proceedings. A departmental official promptly telephoned the Office of the Chief State Solicitor to ascertain whether that office needed a response from the Department in respect of the application. The answer was in the negative. In January 2003, which was approximately a month later, the Office of the Chief State Solicitor repeated in writing its undertaking to advise the Department of any development in the proceedings. The Department did not receive any further communication, between that date and the date of the recent Supreme Court judgment, from the Office of the Chief State Solicitor or any other source concerning the CC proceedings. Neither I nor the Department were notified of the hearing or outcome of the High Court case, which the State won, or the subsequent appeal to the Supreme Court, which the State lost.

Following discussions on the matter with my officials I established a criminal justice group, comprising representatives from the main agencies working in the criminal justice sector, in late 2004. The Garda Síochána, the Courts Service, the Prison Service, the Office of the Attorney General and the Office of the Director of Public Prosecutions are, inter alia, represented on the group. The main function of the group, which is chaired by the Secretary General of the Department of Justice, Equality and Law Reform, is to promote a co-ordinated and cohesive approach to criminal justice matters. This group has met on four occasions since late 2004 and is scheduled to meet again in July. The Secretary General has advised me the group will meet more frequently from now on.

Brendan Howlin (Wexford, Labour)
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Most people will find it extraordinary that a criminal justice group was established in 2004 to promote co-ordination between the Department of Justice, Equality and Law Reform, the Office of the Attorney General and the Office of the Chief State Solicitor. If that is what it was established to do, it is clear it has been a total failure. That is one formal structure. Is a designated individual responsible for informing the Minister of constitutional cases pertaining to legislation in his remit? Do any formal or structured meetings take place between the Minister and the Attorney General, at which various matters are discussed? Is there a Cabinet sub-committee on legislative matters? If so, who is on the subcommittee? Does the sub-committee discuss constitutional challenges which arise? I refer not only to cases which directly challenge statutes, but also to cases which might end up as challenges to statutes.

I would like to ask the Minister about the answer he has just given the House in response to Question No. 2. Is it not the case that the respondents in the recent CC proceedings, to which he alluded, were Ireland, the Attorney General and the Director of Public Prosecutions? Who decided that the Director of Public Prosecutions would defend the case? What level of discussion took place between the counsel nominated by the Director of Public Prosecutions and his officials in formulating that defence?

Michael McDowell (Dublin South East, Progressive Democrats)
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Does the Deputy refer to my officials when he says "his officials"?

Brendan Howlin (Wexford, Labour)
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No, I was referring to the discussions between the DPP's officials and the DPP's counsel.

Michael McDowell (Dublin South East, Progressive Democrats)
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The Deputy asked whether a Cabinet sub-committee deals with legislative and constitutional matters. There is no such sub-committee. I was also asked about the Department of Justice, Equality and Law Reform. Constitutional issues can arise in respect of a great variety of matters. Somebody could challenge the constitutionality of some provision of the Land Acts, some provision of the criminal law——

Brendan Howlin (Wexford, Labour)
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Or the Housing Acts.

Michael McDowell (Dublin South East, Progressive Democrats)
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——or some provision of immigration law. In cases of that kind, the assistant secretary with relevant responsibility, or the principal officer under that assistant secretary, is charged with bringing to the attention of the Minister any knowledge that he or she might have on whether a response is required to any constitutional challenge of significance to the Department. It may seem strange but, as I have indicated to the House on a number of occasions, no notice of what was happening in this case was given, with the exception of the exchange in 2002. No information was made available on whether the case was ongoing or had died a death, as so many cases do. It is not reasonable to assume that every case automatically reaches a conclusion. The great majority of judicial reviews and constitutional claims wither on the vine. Did Deputy Howlin ask another question?

Brendan Howlin (Wexford, Labour)
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Who determined who would respond on behalf of the State? Who organised the legal team? What level of co-ordination took place between the DPP's team and the Department of Justice, Equality and Law Reform?

Michael McDowell (Dublin South East, Progressive Democrats)
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An inquiry into that matter is ongoing. I do not know the answer to the questions. When a mixed question of criminal law and constitutional law arose when I was Attorney General, it was normal for the State in almost every case, if not every case, to put one team, rather than two teams, out on the pitch. I presume the same procedures were followed before I became Attorney General and have been followed since I held that position.

Brendan Howlin (Wexford, Labour)
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Who determines that?

Michael McDowell (Dublin South East, Progressive Democrats)
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It is discussed by the two law officers — the Director of Public Prosecutions, or a senior member of his staff, and the Attorney General, or a senior member of his staff. That is the normal rule.

Brendan Howlin (Wexford, Labour)
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The Attorney General should have known from the start, therefore.

Michael McDowell (Dublin South East, Progressive Democrats)
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The point is that the Attorney General did not know. After he had nominated counsel to deal with the case in the first instance, the Attorney General had no further involvement in the case. The Office of the Director of Public Prosecutions and an official, or some officials, in the Office of the Attorney General had ongoing involvement in the case. However, it was not brought to the attention of the Attorney General himself, as it should have been in accordance with the procedures in the Office of the Attorney General, as a result of human error.

I want to take this opportunity to contradict some mischievous speculation that has appeared in the press. I have served as Attorney General. I have served in Government, with Rory Brady as Attorney General. I have been privileged to serve in a Government served by Rory Brady. He is an extremely hard-working and conscientious man. I know for a fact that if he had been aware of any issue that required my attention, he would have drawn it to my attention. We have an extremely close working relationship.

Finian McGrath (Dublin North Central, Independent)
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It did not deliver.

Michael McDowell (Dublin South East, Progressive Democrats)
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It is based on immense good will. The Department of Justice, Equality and Law Reform and the Office of the Attorney General have never had a closer working relationship than they currently enjoy.

Jim O'Keeffe (Cork South West, Fine Gael)
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The Minister thinks neither he nor the Attorney General is responsible — it is the usual approach.

Brendan Howlin (Wexford, Labour)
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I would like to ask a brief supplementary question. The Minister took up some time by making a personal statement, which was fine. Was the query that his assistant secretary sent to the Office of the Chief State Solicitor in 2002 followed up after no response was received?

Michael McDowell (Dublin South East, Progressive Democrats)
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No.

Brendan Howlin (Wexford, Labour)
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Was the criminal justice group that was established in 2004 apprised of the proceedings which were pending?

Michael McDowell (Dublin South East, Progressive Democrats)
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No. In response to the first question, the correspondence in question was directed to the then Secretary General, but without the name of the Department. That is the common way. If one was addressing correspondence to a Department in 2002——

Brendan Howlin (Wexford, Labour)
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I thought it was directed to the Office of the Chief State Solicitor.

Michael McDowell (Dublin South East, Progressive Democrats)
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I refer to the correspondence that was sent from the Office of the Chief State Solicitor to the Department of Justice, Equality and Law Reform in 2002. It was not dealt with by the Secretary General of the Department. It was dealt with by the criminal law division of the Department. The official to whom it was allocated immediately contacted the person in the Office of the Chief State Solicitor who had written the letter to ask whether anything was required from the Department. The departmental official was informed that nothing was required from the Department, as the Office of the Chief State Solicitor intended to keep the Department posted of any developments.

Brendan Howlin (Wexford, Labour)
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Did the contact to which the Minister refers involve a telephone call?

Michael McDowell (Dublin South East, Progressive Democrats)
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A note was taken of that by both parties to the telephone call in question. The note is still available.