Eamon Gilmore (Dún Laoghaire, Labour)
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Question 3: To ask the Taoiseach if all of the recommendations made in the Sullivan report, following the A case have been implemented in the Office of the Attorney General; and if he will make a statement on the matter. [29622/08]

Enda Kenny (Mayo, Fine Gael)
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Question 4: To ask the Taoiseach if he will report on the implementation of the Sullivan report; and if he will make a statement on the matter. [32692/08]

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Question 5: To ask the Taoiseach if the Sullivan report has been implemented in full; and if he will make a statement on the matter. [43736/08]

Brian Cowen (Laois-Offaly, Fianna Fail)
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I propose to take Questions Nos. 3 to 5, inclusive, together.

In replies to parliamentary questions in both November 2006 and November 2007, the former Taoiseach reported comprehensively on the progress being made in the implementation of the findings of the Sullivan report. The Attorney General has now informed me that all of the recommendations have been fully implemented.

Eamon Gilmore (Dún Laoghaire, Labour)
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The House will recall that the Sullivan report arose from what was described as the A case in 1996, where the constitutionality of the Sexual Offences Act 1935 was challenged and a man was released from prison who had sexually offended a minor. There was great hue and cry about it at the time and eventually the Supreme Court overturned the High Court decision. The issue that arose and which gave rise to the Sullivan report was the question of how the Government had been caught unawares by this case and how a case with constitutional implications was proceeding through the courts and the Government did not know about it or how the Attorney General had not been personally advised of it at the time.

The Sullivan report recommended a number of procedures which the Taoiseach now says have been fully implemented. If they have been fully implemented, how did the same happen again recently? On 13 October the House was informed that a decision had been made in the High Court in respect of the Mental Health Act and the House had to convene very quickly to pass amending mental health legislation. The health spokespersons were informed about it only a few hours before the legislation was brought in. If the Sullivan report has been implemented and there are now procedures in place, apparently, to deal with circumstances where there is a case in the court, how did a replica situation arise in respect of the mental health legislation? How was the Government caught unawares a second time by a court action that presumably should have been flagged to the relevant Minister at an earlier stage?

John O'Donoghue (Kerry South, Ceann Comhairle)
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The question is general in nature but the question the Deputy has now asked by way of a supplementary is specific and it is the responsibility of another member of the Government. I do not know whether the Taoiseach can assist with it as he would not have notice of it.

Brian Cowen (Laois-Offaly, Fianna Fail)
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I take that point. I was going to say in my initial reply that I would like a specific question put down on that matter in the interests of accuracy so that we could put on the record of the House the exact circumstances that arose in the case of the specific instance referred to. I recall that issue but I do not have exact recall of the circumstances of it. I recall in general terms the point made by the Deputy.

I will make two points. Sometimes a decision arises out of a court case which may be quite surprising and has not been predicted and which requires an immediate move by the Oireachtas to close any lacuna or loophole that is identified and which could have a wider policy implication by way of third party judicial review or ex parte application by others in similar circumstances, which was precisely the issue that arose in the CC case when other people who saw themselves as in similar positions as to the state of their detention were taking on the legal opportunity of seeing if they could fit through the precedent set in the CC case.

The question refers to the recommendations made in a report conducted by the then Secretary General of the public service management and development division and whether those have been implemented. My information is that they have been implemented. The report found that the reason the Attorney General was not notified or consulted on the remaining milestones as to how that case was progressing — this was regarded as an important and sensitive case — arose as a result of administrative error. It should be noted that the report also stated that no perfect system could be designed to deal with such administrative errors but Mr. Sullivan was satisfied that the initiatives under way, the new measures which were being proposed and the recommendations arising from the review, would further enhance the operations of the Attorney General's office and reduce the risk of such an event recurring. It does not eliminate the possibility of risk since human error, administrative error, cannot be excised no matter how robust a system is devised but a system could be devised to reduce the risk to the greatest extent possible.

I cannot recall with certainty that the issue the Deputy has raised now arose in the same set of circumstances as the one that gave rise to the report in the first place. I will ask the Attorney General's office to give me a note on the circumstances of that occurrence and Deputy Gilmore can in the correspondence decide whether that point stands up.

Eamon Gilmore (Dún Laoghaire, Labour)
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The Taoiseach in his first reply to me said that all of the recommendations of the Sullivan report had now been implemented, which I welcome. The purpose was to avoid a situation where the Government finds itself flat-footed by a decision of the High Court, that the Government is apprised of cases coming down the track in the courts that could have constitutional implications or implications for the striking down of key legislation.

A number of procedures were recommended by the Sullivan report, including personal notification to the Attorney General of cases that have constitutional implications. There was to be a three-person expert committee to be established which would do some kind of risk assessment and there was also to be regular briefings by the Attorney General to the Secretary General to the Government. Is the Taoiseach aware of any significant cases currently in the courts that may have constitutional implications and may require, depending on the outcome, legislative changes? Are contingency plans being made by the Government in respect of any such cases?

Brian Cowen (Laois-Offaly, Fianna Fail)
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The Sullivan review arose in the context of an information and notification deficit that occurred in the Attorney General's office over the handling of the CC case. The review's purpose was to ensure that in those cases that met the criteria of being important and sensitive, there would be arrangements in place whereby the Attorney General would be informed and consulted on their progress. This would ensure the Attorney General would have a personal knowledge of them and the system would not allow for an administrative error where the Attorney General was not consulted when he should have been because of the sensitivity and importance of such cases.

In the CC case, the Deputy will recall the report identified seven milestones in the evolution of the case about which the Attorney General ought to have been informed or consulted. The Attorney General had been consulted on only one of those, the nomination of counsel in the case. The report instanced the various relevant procedures and protocols already in force in the Attorney General's office at the time. It also instanced the policies in operation to ensure staff were aware of the requirement that it would be brought to the Attorney General's attention as important stages of the case progressed and the existing office co-ordination arrangements that provided further mechanisms to assist in the observance of the requirement.

Nineteen measures were recommended for adoption by the Sullivan report to minimise the risk of a reoccurrence of such events. These would not eliminate entirely the possibility because that cannot be guaranteed fully. The new measures related to enhanced risk assessment procedures, including external reviews etc.

Up to 120 cases of constitutional action are being taken against the State. When linked cases are taken into account, approximately 250 cases are being taken as challenges to the constitutionality of Acts of the Oireachtas and statutory instruments. Ireland has a strong judicial review procedure. Parties and citizens can apply to court to seek declarations or orders in respect of the constitutionality, or otherwise, of any aspect of statute law. The secretary to the Government is notified of the progress of these cases. If there are any particular issues which would act as an early warning system for the secretary, the Attorney General would bring these to his attention. This would be in a minority of those cases, as others trundle along, some important, others less important for public policy implications.

Enda Kenny (Mayo, Fine Gael)
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Following the collapse of the CC case on statutory rape, I made the point that there was a gap in the law in the protection of children from sexual predators and the need for a constitutional amendment. Has an amendment been considered by the Government or has it been given priority? The case arose because of a breakdown in communications between State agencies.

It has been suggested to me on several occasions that there has been a serious reduction in prosecutions of allegations of statutory rape being pursued by the Director of Public Prosecutions because of concerns over a defendant claiming he made a mistake about the victim's age. Is there any substance to these allegations?

Brian Cowen (Laois-Offaly, Fianna Fail)
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The supplementary information I have on foot of the questions tabled relates generally to the Sullivan report rather than the present legal status of statutory rape laws as a result of the CC case. I would have to check whether any lessons are to be learned or reviews drawn up to further amend the law, or perhaps a question should be tabled to the Minister for Justice, Equality and Law Reform.

The Director of Public Prosecutions has stated that quantifying comparative numbers of prosecutions for sexual offences involving children in the years before and after the CC v. Ireland case in 2006 may give a misleading picture due to the unusual circumstances surrounding the loss of section 1(1) of the Criminal Law Amendment Act 1935 as an option.

Cases which were pending when CC v. Ireland was decided were examined. Where other charges were appropriate, they were brought. In a small number of cases, no other charges were appropriate and in some cases injured parties no longer wished to proceed.

Substitution of sexual assault on other charges for section 1(1) charges muddies the waters from a statistical perspective in the years both before and after the finding of unconstitutionality. Further complications arise in that the Director of Public Prosecution's files are assigned on the basis of the year in which they are received in that office. Such files may relate to offences which took place months, years or decades previously. They may not reach the courts for months and years afterwards. This creates further difficulties from a statistical standpoint if what is sought is a year-by-year comparative analysis.

Accordingly, the Director of Public Prosecutions cannot definitively say that he is prosecuting either more or fewer child rapes than he was previously. There is a comparison between unlawful carnal knowledge and defilement, appropriate as the new offence under the 2006 Act is broader in its scope than the old section 1(1) of the 1935 Act.

Enda Kenny (Mayo, Fine Gael)
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Has any decision been made on a constitutional amendment?

Brian Cowen (Laois-Offaly, Fianna Fail)
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No, I do not have any information on that. Tabling another question to that effect would be the better option.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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When the Sullivan report was published into the handling of the A case in the Attorney General's office, I recall the Green Party making a case for a fully independent inquiry to scrutinise the workings and channels of communication between the Office of the Attorney General, the Office of the Director of Public Prosecutions and the Department of Justice, Equality and Law Reform. What was the Taoiseach's response to that call from his coalition partners? Has that strong demand been maintained by the Green Party since?

Will the Taoiseach reconfirm all the recommendations of the Sullivan report have been implemented? Is he satisfied sufficient checks and balances are in place between the Office of the Attorney General, the Office of the Director of Public Prosecutions and the Department of Justice, Equality and Law Reform?

Brian Cowen (Laois-Offaly, Fianna Fail)
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As I stated in the original reply, I am informed by the Attorney General that all the report's recommendations have been implemented. A three-person panel of experts, a risk management group, also made recommendations which were referred to in the Sullivan report. Appropriate action has been taken to implement that group's recommendations and its members have been informed.

A legal management advisory committee has been established. It met on 9 April, 9 July and 28 October 2008 to consider reports on legal issues, to draft memoranda to the Government on sensitive cases etc. The annual report for the Office of the Attorney General, currently being finalised, is expected to be submitted to the Government shortly and will be published as soon as possible thereafter. Members will have an opportunity to examine it then.

To answer Deputy Gilmore's earlier point on the recent emergency Bill in the health area, the Mental Health Act shows that the office could still be taken by surprise. The issue that gave rise to the need for emergency legislation in the form of the Mental Health Act arose in the course of a hearing that commenced on 7 October 2008 as a result of evidence given. The issue was not pleaded in the original statement of the case and was raised by the High Court judge. It became a preliminary issue during the hearing of the judicial review on 14 October. As soon as the issue was raised in the case, the need for emergency legislation was raised with the Department of Health and Children by the Office of the Attorney General. The Office of the Attorney General prepared draft legislation on the instructions of the Department, which was enacted on 30 October, within two weeks of it being raised in the case. This was the day before the delivery of judgment in the case. All appropriate procedures concerning the sensitivity of this file were followed and the issue in the case was handled as a matter of urgency. It was dealt with in the shortest possible time and the question raised by Deputy Gilmore reinforces the fact that procedures were operating quite well as the reply, which I have just uncovered in the series of supplementaries attached to the question, suggests.

Regarding the memory of Deputy Ó Caoláin about the position of the Green Party at that time, I can only presume that the comprehensive recommendations of the Sullivan report provided the public interest response and the subsequent full implementation reinforces the fact that the confidence was well placed.

Emmet Stagg (Kildare North, Labour)
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They do not look very happy.

Eamon Gilmore (Dún Laoghaire, Labour)
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I thank the Taoiseach for coming back to that issue. His answer demonstrates the procedures are working well but the Government is not working very well. If the Minister was told by the Attorney General on 14 October that the case in the High Court required amending legislation, the Minister did not tell the House or the spokespersons until the day before the legislation had to be brought in. Procedures may be working but the Government is not.

Brian Cowen (Laois-Offaly, Fianna Fail)
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I cannot let that pass, it is an unjustified criticism.

Eamon Gilmore (Dún Laoghaire, Labour)
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It is a fact.

Brian Cowen (Laois-Offaly, Fianna Fail)
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In the context of the issue, the need to deal with the drafting of that legislation and obtain approval of the Government is the time in which one can proceed. If one indicated publicly before then, one could have prejudiced——

Jan O'Sullivan (Limerick East, Labour)
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The Minister only told us when the judgment was about to be announced.

Brian Cowen (Laois-Offaly, Fianna Fail)
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It was raised on 14 October during the case. It had serious public policy implications. It was important that new law be put in place before the matter was heard and adjudicated on. That happened within a two week period from when the point was raised by the High Court judge. The counsel representing the Attorney General brought it to the attention of the latter, who brought it to the attention of the Minister for Health and Children. The response was appropriate and met wider public policy concerns raised.

Eamon Gilmore (Dún Laoghaire, Labour)
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She came in here in a panic and the House had to sit on a Friday to pass the Bill.

Brian Cowen (Laois-Offaly, Fianna Fail)
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That is only fair. Any fair-minded person would regard that as a speedy and comprehensive response.