Pat Rabbitte (Dublin South West, Labour)
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Question 154: To ask the Taoiseach the number of extant legal proceedings to which the Attorney General is a party or a notice party in which the constitutional validity or consistency of an enactment has been challenged, indicating the enactments involved and the present stage of those proceedings; the number of those cases in which a Minister of the Government is not also a party, indicating the arrangements in place for consultation with an appropriate Minister on the defence of such proceedings; the number of cases in which the Director of Public Prosecutions or another public authority is also a party, indicating if there are arrangements for joint carriage of the defence of those cases; and if he will make a statement on the matter. [23711/06]

Bertie Ahern (Dublin Central, Fianna Fail)
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Following is the information requested by the Deputy.

1. The Number of Extant Cases

There are in the order of 664 cases extant where challenges have been made to the constitutionality of acts of the Oireachtas or to Statutory Instruments. This figure includes 85 cases pending where the Road Traffic Act legislation, providing for the use of intoxiliser equipment, is being challenged as being repugnant to the Constitution. It also includes 317 cases involving constitutional challenges to the imposition of nursing home charges. There is also 1 case involving Article 35.4 of the Constitution.

In addition there are ten test cases extant arising from the operation of the Irish Born Child 2005 scheme in cases where applicants were refused leave to remain for various reasons. There are in excess of 80 other such cases in the background and where proceedings have already issued. Challenges are based on constitutional arguments as to right of the family and of the child.

There are approximately 70 to 80 cases challenging the Immigration Act, 1999 (Deportation) Regulations 2002 SI 103 of 2002. Several of these cases have been pleaded in terms that challenge the constitutionality of the regulations.

2. Enactments Involved and Current Stage of Proceedings

Court proceedings have issued and are at different stages of the litigation process to challenge several areas of statutory law including provisions of:

Pharmacy Act, 1962,

Public Health (Tobacco) Acts, 2002 and 2004,

Processed Animal Products Regulations, 2000, · Medical Practitioners Act, 1978, (Part III),

Mental Treatment Acts,

Health Acts, (Equalisation),

Health (Flouridation of Water Supplies) Act, 1960,

Gas Act, 1976,

Refugee Act, 1996,

Immigration Act, 2003,

Immigration Act, 1999,

Deportation Regulations,

Illegal Immigrants (Trafficking) Act, 2000,

Irish Nationality and Citizenship Act, 1965, as amended,

Companies Act, 1963, (S.390),

Bankruptcy Act, 1988 (S.85),

Defence Act, 1954 (and Regulations)

Garda Síochána Discipline Regulations, 1989,

Rules for the Government of Prisons, 1947, (R.63).

Coroners Act, 1962, (S.26(2)),

Civil Legal Aid Act, 1995,

Civil Liability Act, 1961, as amended,

Courts (Establishment and Constitution) Act, 1961 (S.1 & 2(b)), as amended,

Statute of Limitations, 1957,

Tribunals of Inquiry (Evidence) Acts, 1920-2002,

Rules of Superior Courts (O.22, r.1 — libel and slander),

Equal Status Act, 2000,

Civil Registration Act, 2004 & Regulations (Births, Deaths & Marriages),

Family Law (Divorce) Act, 1996,

Sexual Offences Act, 2001,

Offences Against the State Act, 1939,

Vagrancy (Ireland) Act, 1847,

Sex Offenders Act, 2001 (Ss 7(2), 8(3), 10 & 11),

Criminal Law Amendment Act, 1935 (S. 2),

Criminal Justice (Public Order) Act, 1994,

Criminal Justice Act 1997 & Prison Rules,

Criminal Justice Act, 1993,

Criminal Justice Act, 1990,

Criminal Justice Act, 1999,

European Arrest Warrant Act, 2003,

Offences Against the Persons Act, 1861,

Prosecution of Offenders Act, 1974, (S.3),

Road Traffic Act, 1994 (S. 41),

Road Traffic Act, 1961, (S. 65),

Proceeds of Crime Act, 1996,

Finance Act, 1992,

Finance Act, 1997,

Finance Act, 2001 (S. 127 (2)) & related provisions,

Taxes Consolidation Act, 1997,

Landlord and Tenant (Ground Rents) Act, 1967, as amended,

Social Welfare Acts,

Deceased Wife's Sisters Marriage Act, 1907, as amended,

Industrial Relations (Amendment) Act, 2001,

Electoral Act, 1992, as amended,

Fishery Harbour Centres legislation,

Fishery Harbour Centre (Management, Control, Operation and Development) Bye Laws,

Housing Act, 1966-2004 (Provision of Accommodation),

Housing Act, 1966, S.62.

Housing Act, 1966, (Compulsory Purchase),

Housing (Miscellaneous Provisions) Act, 1992

Housing (Miscellaneous Provisions) Act, 2002,

Derelict Sites Act, 1990,

Planning and Development Act, 2000, Part XIV (Compulsory Purchase),

National Monuments Act, 1930,

Environmental Protection Agency Act, 1992.

3. Cases where Minister is not a Party

In all cases, the parties include 'Ireland and the Attorney General' — the inclusion of the Attorney General as a party is a legal requirement where the constitutionality of legislation is challenged in proceedings taken against the State. In 92 extant cases, Ministers of Government are not named as parties in the action.

4. Arrangements in place for consultation with Minister

In cases where the Minister is a party to the proceedings, instruction on the case is sought from the Department and the Department is kept informed on developments in the case and attend pre hearing consultations. Similarly in the case where a Department may not be a named party but where they have a responsibility for the subject matter of the litigation, it is notified of the proceedings.

Procedures in this respect have been strengthened. New notification procedures have been introduced by the Attorney General to be followed in cases of constitutional challenge and these include arrangements for notification of all pleadings and submissions to the Secretary General of the Department concerned and provide for regular reviews with Departments in constitutional cases. The procedures provide for regular meetings between the Office of the Attorney General, the Director of Public Prosecutions and the Department of Justice to review and assess the effect, if any, on the general enforcement of the criminal law of any constitutional challenge.

Under the new procedures, a Memorandum of Information for the Government is to be brought quarterly to Government through the Taoiseach so as to give regular updates on constitutional actions.

5. DPP or other Public Body

There are approximately 130 instances where other public agencies are parties to these extant actions, e.g, Garda Commissioner, Revenue Commissioners, the refugee agencies, Tribunals, local authorities, prison governors, Health Service Executive, Environmental Protection Agency, An Bord Pleanála and the Director of Public Prosecutions. The Director of Public Prosecutions is a party to the action in 22 cases. The State's legal service does not act for all public agencies in all these cases — such as is the case for several of the agencies mentioned. However, where the State defends a challenge to the constitutionality, it does so on behalf of Ireland and the Attorney General.

6. Arrangements in place for joint carriage of defence

In cases involving the Director of Public Prosecutions where there is a constitutional challenge the AGO/CSSO work in close co-operation with the Office of the DPP. Generally, counsel are shared between the two offices and court documentation and steps taken in the case are approved by both the Office of the Attorney General and the Office of the Director of Public Prosecutions.

There is high degree of cooperation in refugee/asylum law cases where the AGO/CSSO act for the agencies involved with a full input from the agencies in defending the cases.