Committee Reports::Interim Report No. 02 - Appropriation Accounts 1993::12 December, 1994::MIONTUAIRISC NA FINNEACHTA / Minutes of Evidence

Chairman: We now come to item 5 on the Agenda. Mr. Russell you are welcome. Perhaps you would introduce your colleague?

Mr. Russell: I am accompanied by Mr. Desmond Doyle, Office Manager of the Office of the Attorney General.

Chairman: Welcome Mr. Doyle. I ask the Comptroller and Auditor General to introduce his report on the Vote of the Office of Attorney General. There are no paragraphs in this report.

Mr. Purcell: As you say, there are no paragraphs in the report on the Office of the Attorney General. The Vote provides for the salaries and expenses of the Attorney General and his staff, and that would include the Parliamentary Draftsman. Of course, the salaries and expenses of the Chief State Solicitor’s Office are also encompassed by this Vote. The Vote also provides for fees due to counsel engaged on behalf of the Attorney General and for legal costs payable in certain cases, and also for the payment of a grant-in-aid to the Law Reform Commission. The receipts in the Vote comprise costs and fees recovered by the Chief State Solicitor. The Department of Finance still undertakes, on an agency basis, the accounting function for this Vote - there is not an accounting function, as such, in the Attorney General’s Office.

Deputy Foley: Under subhead A.1, expenditure on salaries, wages and allowances was £4.5 million approximately. What is the total number of staff in your Office?

Mr. Russell: In the Office of the Attorney General itself, as opposed to the combined office with the Chief State Solicitor’s Office, there is a total of 42 persons.

Mr. Russell: Those 42 together with, in the Chief State Solicitor’s Office, 47 solicitors, 40 and a half - that is the way these things are done - technical officers and 51 other personnel.

Mr. Russell: I should add that in addition to those members of staff I have mentioned, all of whom are civil servants, there are 33 State Solicitors throughout the country.

Deputy Foley: That is £4.5 million for 200 in round figures. Is that total salary, wages and allowances? What are the allowances from the salaries? The total figure is given for salaries. What are salaries?

Deputy Foley: What is the total amount of salaries? I am just making it out in round figures. A total of £4.5 million was paid out to 213 people.

Deputy Foley: That seems an extraordinary figure. Could you give us a breakdown of the figure? What do salaries amount to?

Mr. Russell: I could not give you that, Deputy, but they are, of course, paid the normal civil service rates.

Mr. Russell: Each of these ranks is a civil service rank and they would receive no more and no less than corresponding civil servants in other Departments, in the case of the civil servants.

Deputy Foley: Who is responsible for examining the systems in operation in the Office to ensure efficiency?

Mr. Russell: The head of the Department must take responsibility for that task.

Mr. Russell: There is the Chief State Solicitor and there is the Senior Legal Assistant, both of whom are officers of the Attorney General.

Deputy Foley: What is the title of the highest level administrative person in your Office?

Deputy Foley: There was a considerable sum spent on machinery and other office supplies - £148,000. What was the purpose of that office machinery; was it to update efficiency in the Office?

Mr. Russell: It was for photocopiers, word-processors, mainly in the Chief State Solicitor’s Office, as it happens, in that year.

Deputy Foley: Was that £148,000 spent on the Chief State Solicitor’s Office?

Mr. Russell: Not all of it; some of it came in to the Attorney General’s Office itself but most of it was in the Chief State Solicitor’s Office.

Mr. Russell: I believe it was in 1993 - it certainly became payable then - it was actually installed. There are, of course, constant renewals but there was a large amount then.

Deputy Broughan: At what stage is the investigation into the efficiency of the Office, which we understand was being conducted by the “three wise men” before Christmas?

Mr. Russell: It entailed three persons, headed by an Assistant Secretary, coming to the Office and spending some weeks there, daily interviewing everybody, examining the way things work. They, in turn, report to the three Secretaries who are described as the “three wise men”, who themselves, of course, have come over also on occasion. In addition to that and concurrently with it, there are two officers - three in the last week - supplied by the Department of Justice who have been permanently on the premises for some time. Two of them arrived shortly before the “three wise men” - a matter of days - and they are still on the premises.

Mr. Russell: One is involved specifically in the information technology side of things; another in what I would call registry type of things - for want of a better expression; the third, who is an Assistant Secretary at the Department of Justice, is involved in management aspects. They are the particular interests of those three persons.

Deputy Broughan: You have no idea of what the report would entail or what changes would be decreed by the new Attorney General in systems which are operating. Would you expect significant changes in the operation of the Office?

Mr. Russell: I would hope that a good deal of benefit will derive from this and that there will be improvements. I would certainly hope so and that is the hope of all of the staff.

Deputy Broughan: Would it be your impression - leaving aside recent controversies - that the resources given to the Offices in question traditionally have been deficient?

Mr. Russell: From time to time, certainly, there have been occasions when we felt, so to speak, hard done by. I do not know whether that feeling is unique in the Civil Service. Certainly, there were occasions when we felt we had not enough staff. Generally speaking, after a period, these were remedied until the next time the problem arose.

The main problem is that litigation and law generally is increasing constantly. More people are suing the State; more people, therefore, have an interest in closely watching legislation or advices given. Departments are getting more conscious that they must look over their shoulders all the time at the courts and, therefore, they tend to come more frequently and earlier for advice. Business, so to speak, is increasing all the time. One strives to ensure the resources keep pace with the increase in business.

Deputy Broughan: If the witness felt he was investigating a case which had significant public interest, how would it be conducted now? Given that he came back to the Fr. Smyth case on a number of occasions, according to his evidence to our sister committee, how would he ensure in a case that arose today or in the next few months that an important public matter and one of great public urgency might be dispatched in a relatively short time?

Mr. Russell: The particular lesson learned is that one will be watching out for another Fr. Smyth case. We always prioritised cases in accordance with the urgency attached to them by the Department or Minister involved or the urgency the matter itself clearly demonstrated. We always did and will continue to do so.

We do not deal with files, so to speak, chronologically. If five files arrive on a person’s desk there is an immediate decision taken by him or her as to which must be done instantly, which this afternoon and which next week. That has always been the case and will continue to be the case. I have no doubt whatever that the experience of the last few months has sharpened people’s appreciation of what can go wrong. There is a good deal of alertness now in the Office about guarding against repercussions.

Deputy Broughan: Inevitably, given what the witness said about resources, would there still be a situation where he might have to put an important file aside - for, perhaps, advising the Government about legislation or whatever - and keep coming back to it over a period of time? Could that still happen?

Mr. Russell: One of the issues we are looking at is the question of whether we have enough staff. That is preoccupying us greatly in conversations with our visitors. That is an aspect of the report which we look forward to with keen interest, to see what it will say about that.

Mr. Russell: I had the statistics in respect of a different period, the year 1993. I was handling three cases at 11.45 last night. That is my most recent statistic.

Mr. Russell: Yes, it was homework. I had escaped from the Office shortly before that. I am afraid I could not say. Leaving aside what I have just mentioned, I am currently dealing with four extradition cases in the High Court and Supreme Court. These have been before those courts for the best part of two years.

Deputy O’Keeffe: With regard to efficiency in the Office, the witness mentioned he is conscious now of what could go wrong. We on this Committee are conscious that everything should go right. He spoke about staffing levels being part of the ongoing discussions with the “three wise men”. Could he outline to the Committee again the request placed with the Department of Finance for additional staffing before the rigours of the last few months became apparent? Can he confirm the interjection from an official from the Department of Finance at the last meeting, who said what was sought was not really additional staff but rather the upgrading of some officials within the witness’ section?

Mr. Russell: Yes. In 1994, a couple of months ago, two additional legal assistants took up duties. They had been sanctioned in May 1994. The recruitment proceeded through the Civil Service Commission in the normal way and they took up duty a month or so ago. We had asked for three and were given two. The matter can and will be reviewed, not alone in the context of the current visitation to the Office but in any event, in order to see how we get on with that level.

As regards other requests in the last few years, I think it is some years since we asked for additional solicitors in the Office of the Chief State Solicitor and did not get them. My recollection is that there is no refusal of staff on hand.

As regards restructuring, we have been conscious for several years of the need to improve the management structures in both the Office of the Attorney General Office and the Office of the Chief State Solicitor to improve the level of supervision. For example, in the Office of the Chief State Solicitor, there are some 3,500 High Court and Circuit Court actions on hand at present, with a possible exposure of the State to damages of approximately £1 billion. We are conscious of the importance of ensuring the efficient management of those cases. We have asked for, but not obtained, sanction for improving the structures at senior management level in both Offices.

Mr. Russell: In 1992 we asked for the creation of an additional position in the Office of the Attorney General at Assistant Secretary level. In 1992-93 we sought a third post of Assistant Chief State Solicitor which would also be at Assistant Secretary level. Shortly before that we had sought the position of Deputy Chief State Solicitor to manage the shop, so to speak, in the absence of the Chief State Solicitor.

In addition, on the parliamentary drafting side of the Office of the Attorney General there are a number of Parliamentary Draftsmen of some six years standing who for two or three years have been doing work considerably above the normal importance, seriousness and complexity of work for people at that station. In the opinion of the Attorney General, in my own opinion and that of the staff they have been working consistently at a level and under a strain, with the Government’s legislative programme, which merits their promotion. That has been refused. Apart from dissatisfaction, this problem exists within the Office because we are making demands on the Parliamentary Draftsman which have never been made on them before.

Apart from that, we will be seeking to recruit further Parliamentary Draftsmen. The pool from which one can recruit is rather small and everyone knows each other. If the dissatisfaction becomes known to would-be recruits, I would be apprehensive that people who would be good and would want to join the Office might think it is a dead end and that they would be stuck forever on the bottom rung. Those are the areas where we have not got what we wanted.

Deputy O’Keeffe: Are you saying that it could have been the case in the past that we have not got the calibre of person into the Office that one would have liked?

Mr. Russell: No. We have been exceptionally lucky - I suspect it is luck as much as anything else - in the quality of the people we have got. We have, of course, always adopted the rule in recruiting that if in the slightest doubt, we say no. We would rather go away empty handed from a competition of the Civil Service Commissioners than take someone who might not be up to scratch.

Deputy O’ Keeffe: You mentioned recruiting State Solicitors to manage the shop in your contribution. This raises the whole question of the efficiency of management, and certainly over the last number of months, the proper management of the Office of the Attorney General has come into focus. You also mentioned the fact relating to efficiency and that you carried out self examination. Anybody dealing with self examination will always question the objectivity of that examination. The general impression among the public was that, at the early stage, notwithstanding the excellence of your own discourse at another committee, perhaps this Office could be managed far more efficiently and effectively. Is it your view that there is scope for more outside experts to be brought in to carry out an analysis rather than that analysis coming from the inside into your Office and perhaps even across the State sector?

Mr. Russell: Well, I cannot speak for the State sector but certainly, I accept that self assessment can sometimes be a less painful exercise than assessment by an outside body. I would hope that the very comprehensive assessment - the assessment in the Attorney General’s Office which is under way at present is, in my opinion, the only one that has ever been carried out from outside - will produce good results, will be helpful and we will be shown ways in which we can improve the way we do things.

Deputy O’Keeffe: Do you think that perhaps bringing in people from the outside to look at the efficiency of their operations is something that other sectors within the State should look at, if you accept at this stage that it is going to have great merit within your own Department?

Mr. Russell: I suppose there is no human institution that could not benefit from a dispassionate, expert, outside examination.

Deputy O’Keeffe: I think there is a lesson to be learned from this. Obviously, we are going to have to await the report of the three man committee in this Department and maybe the -

Deputy O’Keeffe: - Comptroller General would look at this to see what merit there is in looking at it relative to other sectors within the State.

Chairman: That is a point I will take up and summarise because it is a good one.

Deputy O’ Keeffe: Could the official from the Department of Finance outline exactly the requests that were placed with the Department for additional staff and the response from that side to those requests?

Mr. O’ Farrell: Certainly, Deputy. I would say that as between extra pairs of hands, people to discharge the work, there is only one post at issue that was sought and not sanctioned, namely a post of legal assistant in the advisory service. In terms of numbers, and I think I correctly understood Mr. Russell to say this, the solicitors that were sought in the Chief State Solicitors’ Office have since been sanctioned. In recent years, going back to my own time on the Vote since 1985, those requests have been dealt with promptly.

Any difference between the Department of Finance and the Attorney Generals in terms of numbers, i.e. actual staffing resources as such, is pretty minimal. Obviously, the review would, inter alia, be looking at the question of resources. At any time, the Department of Finance would always have regard to fluctuations in work in reviewing the staffing of any civil service office in response to a well argued case. We might also come looking for staff back and that happens as well. We find that more difficult.

Deputy O’Keeffe: Can I ask Mr. Russell if he was satisfied with the response received from the Department of Finance up to now to requests for additional staffing levels?

Mr. Russell: I certainly have no grievances now, except for the one possible question of an additional legal assistant. That remains to be seen; I would certainly not make an issue of that.

Deputy O’Keeffe: Finally, Mr. Russell on the last occasion that you were before this Committee, you indicated that there were about 20 applications for payment arising from the Beef Tribunal. I put two requests to you, one which was endorsed by the Committee, that we would seek to have a clawback on expenses paid to people involved in the Tribunal and if you could give us an idea of the individuals who had lodged claims at this time with the Taxing Master and the levels of those claims?

Mr. Russell: Yes. At the Tribunal, a total of 77 parties were awarded costs and of these, 11 have submitted claims for costs. They are, in fact, all from solicitors as opposed to cost accountants. They total £55,410. They are the small claims and that is evidenced, apart from the amount, by the fact that they have been prepared by the solicitors themselves as opposed to their going to a cost accountant. Where there is a substantial sum of costs involved, a solicitor for a litigant will always go to a cost accountant who will draw up the bill and make sure to overlook nothing - that has not happened in any of these cases - but we are aware informally that there is one firm of cost accountants who are preparing bills of costs for a large number of people, including, they have indicated, several in six figures. That is the only knowledge we have because this is an informal indication - they have not yet submitted the bills - but they are, of course, for major parties at the Tribunal. These claims I am speaking of here are for the smaller parties who were only at the Tribunal for a short time.

Mr. Russell: I considered the question whether it would be proper to indicate publicly the amounts claimed and I think it would be unfair to the solicitors for this reason. It they chose, they could go to a cost accountant and we would have to pay their bill. If, for example, they became annoyed at the way they were being treated, or for any reason - they do not have to give an explanation - they would be entitled to say, “Well, now I am withdrawing that claim I put in, I think it was too low and I am now going to a cost accountant. I will be presenting a bill.” That is one aspect of it and a possible result of publicising the amounts individuals seek. Another is that ordinarily in correspondence between solicitors, in this instance it is between a given solicitor and the Chief State Solicitor, details are not published because it is not supposed to be the correct thing to do. I, therefore, suggest that you do not press that question. I have given the number of cases which is 11 and the total bill. Later all will be revealed in the sense that -

Deputy O’Keeffe: You are suggesting that the small fry are before you. You may not be aware of this but arising from previous debates at this Committee, I have a particular interest in establishing the claims to be lodged in respect of Deputy O’Malley and Deputy Rabbitte -

Deputy O’Keeffe: - and whether any of the people who have presented solicitors claims have represented either Deputy O’Malley and now Minister Rabbitte.

Mr. Russell: - because they are public representatives and would wish for transparency. None of them are the gentlemen you have mentioned.

Mr. Russell: I am speaking of the 11 which have beenreceived, not of those in respect of which we have received informal indication.

Deputy O’Keeffe: Do you believe they will put it under the umbrella of a costs accountant, given their desire for accountability, openness and transparency? I ask Mr. Russell if he will bear in mind my continuing interest in the bills to be submitted from that Minister and Deputy, in particular, and that that will be brought to the attention of the Committee at the earliest possible date.

Deputy O’Keeffe: It is very appropriate because this is part and parcel of the debate here.

Chairman: The Committee cannot balk at probing political issues if suspected wrongdoing is involved or if there is a suspected misuse of public funds, but the Committee has traditionally avoided party political debate in this area and acted in a limited way.

Chairman: That does not mean that we keep away from political issues where there is suspected wrongdoing. It would be wrong for me to allow questions that are purely of a partisan nature and that is one which is not appropriate to this Committee -----

Chairman: Yes, but that can be elicited by way of Parliamentary Question. There is no question of me allowing selective details to be sought and given.

Deputy McCormack: In an earlier reply to a question about prioritising files, Mr. Russell indicated that files are prioritised by him and are dealt with according to the urgency placed on the file by the Minister. If that is correct, the way in which the Fr. Smyth case was dealt with tells us a lot about the priority of the file. Did I understand your answer correctly?

Mr. Russell: Certainly, where a Minister or Department represent a particular file or request for advice or whatever as being urgent and where it is clear that they are right, then priority will be given to it. In addition, I mentioned that there are cases where nobody says anything about priority but it is clear from the documentation that it must be completed as a matter of priority. For example, there are many important court cases where the court will have given us 24 or 48 hours to respond and no Minister or Department will have said anything about priority but a glance at the papers will tell the official that it must be given priority.

Deputy McCormack: When a Minister indicates that priority should be attached to a file, is that dealt with?

Mr. Russell: Yes, of course. There are occasions where several Ministers, simultaneously, claim priority for their files. It is then a matter of doing the best we can.

Deputy McCormack: It is obvious that in that case there was no ministerial priority attached to the file.

Deputy McCormack: I detect from questioning so far that everybody is working under great pressure and I am very impressed with people working until almost midnight - it often happens to myself - and that you are seeking to rectify this situation, to recruit further Parliamentary Draftsmen. The Parliamentary Draftsmen have been working under great strain recently and I can understand that also. Are Parliamentary Draftsmen involved in drafting replies to Parliamentary Questions also?

Deputy McCormack: In the questions relating to justice and matters relating to your Office, would Parliamentary Draftsmen draft replies?

Mr. Russell: No, Parliamentary Draftsmen never draft replies to Parliamentary Questions. They only draft legislation.

Deputy McCormack: Yes, but from what we have heard in recent months and from the other inquiry which is now taking place, it appears that a considerable length of time was spent by somebody drafting replies to questions which would conceal rather than give the answer. That is the point I am getting at. It would be a lot less frustrating for staff and everybody else if the drafted replies would answer the question. It would be a lot less frustrating for those asking the questions if the replies being drafted were the real answers to the question and every attempt was made to answer them rather than give a reply which would conceal the answer.

Mr. Russell: As far as the Attorney General’s Office is concerned, questions are never directed to the Attorney General so we do not have to draft replies, but we are on occasion approached by other Departments whose Ministers have been asked a question to give any legal or factual information we possess which they do not. That would apply in particular to the Department of the Taoiseach because traditionally when there is a question relating to the Attorney General, which is appropriate for a response, that response is given by the Taoiseach. His Department would frequently, perhaps invariably, approach us and ask us to approve or to provide material for the reply, but that would be done on the advisory side of the Office.

Deputy McCormack: That is what I am talking about. It is that type of reply which you spend a lot of time drafting. The famous reply which was never given to the question which was never asked, was obviously a reply drafted by somebody in your Office who was making a serious attempt not to give the answer to the question rather than to give the answer to the question. I would submit that that is certainly one way of overworking and demoralising staff and working under pressure. It would be better and more open if, when such a request is made, as happens frequently, particularly from the Taoiseach’s Office, that replies would be drafted which would help the questioner rather than confuse him.

Mr. Russell: I am afraid I do not know what Parliamentary Question you are talking about.

Deputy McCormack: I am talking about the usual replies to Parliamentary Questions - the one’s which concern your Office which you have been asked to prepare replies on.

Mr. Russell: I understood you to be referring to a particular one, which you said was calculated to mislead. I am gratified to hear that you are not in fact talking about that but in the most general of terms. I can only reply in equally general terms.

Mr. Russell: Please allow me to finish my answer. I can only reply in the same general terms and that is, that when we are asked to assist in answering a Parliamentary Question we naturally do so. We do the best we can to be as honest as we can.

Mr. Russell: Remember that the responsibility is not ours. We offer material for a reply and it is either accepted or rejected by whatever Department has sought our assistance.

Deputy McCormack: When you offer material for replies to Parliamentary Questions - if it has not happened in the past and you say it has not happened in the past - and from my experience of all types of Dáil questions, including replies prepared by your Office, the attempt is to evade answering questions rather than to answer them. I am glad if that is not the case in your Office.

Mr. Russell: I cannot speak for other Departments, but I suspect - this is only speculation, although I should not speculate, but the Deputy has asked for an opinion - that the experience of the Beef Tribunal will cause civil servants, who are preparing replies, to do so in a thoughtful manner from now on.

Deputy McCormack: I hope so as it would be a big help to everyone. I want to clarify the situation as regards staff. There is £4.5 million for salaries, wages and allowances. I gather from Mr. Russell’s reply that there are 42 permanent staff. Is that correct?

Deputy McCormack: I want to be clear about this. The next list given was 47 State solicitors, 40.5 technical staff, 51 other personnel and 33 further State Solicitors. Is that correct?

Deputy McCormack: What is the function of the other 33 State Solicitors in addition to the first 47 named?

Mr. Russell: The 47 State Solicitors work in the Chief State Solicitors Office in Dublin Castle and they are civil servants. By contrast, the 33 State Solicitors are solicitors in private practice throughout the State who are also under contract to act as State Solicitor for a portion of the country.

Deputy McCormack: It is quite clear that wages are being appropriated for those staff, including the 40.5 technical staff. However, they are not, like the 33 State Solicitors who have been working in private practice, full-time employees of your Office.

Mr. Russell: That is an invention of the Department of Finance, for which I take no responsibility. It is a job sharing situation. They are counted as a half because they are paid half the annual salary of a person working full-time.

Deputy McCormack: We will leave the half out because we do not want to half anyone, but there are 40 people working full-time in the Attorney General’s Office. Is their only source of income from your Office?

Mr. Russell: They are also full time civil servants exclusively working for the State.

Mr. Russell: Yes indeed. They are all paid the ordinary civil service rates that obtain throughout the civil service.

Deputy McCormack: Yes, I have no doubt about that. I want to establish if all are full time except the 33 State Solicitors?

Deputy McCormack: Then further down the list we see £1,710,000 for fees to counsel, that is on top of the wages again?

Deputy McCormack: And £1,373,000 general law expenses, could you clarify some of that for me? For the £3 million entirely.

Mr. Russell: I will just get the figure. You are asking about the £1.3 million?

Deputy McCormack: Yes, to clarify the general law expenses and who gets the £1.3 million.

Mr. Russell: The single largest item in that is costs awarded by the courts against the State in actions taken by members of the public against the State.

Deputy McCormack: In real terms the administration costs taking salaries into account is the £4.5 million plus the £1.71 million because those are people who have to be taken on and have to be paid for.

Mr. Russell: If one engages somebody whether as a full time employee, in which case he will be paid out of the £4.5 million, or whether one engages him on contract to provide services, in which case he is payable out of the £1.7 million, one has to pay him if one hires him.

Deputy Upton: I would like to ask Mr. Russell about the system of determining priorities in his Office. He spoke about the role Ministers play in that. How exactly does that work?

Mr. Russell: A typical example would be where a Department would send a Bill to be drafted to the Office and they would say in the covering minute ‘please draft a Bill’ and the Bill would be in accordance with a Government decision authorising the drafting of the Bill. Quite frequently the minute would say ‘the Minister has committed himself to introducing the Bill next month or in the current session and therefore produce the Bill immediately’. That is one form. Another would be a personal letter from the Minister to the Attorney saying ‘my officials are sending over a Bill please ensure that it is drafted quickly.’ That is another traditional method of seeking priority.

Deputy Upton: Could Mr. Russell tell us how priority is determined in cases such as the Smyth case and so on? What level of involvement had the Attorney General in the details of each case which comes in? Is every case brought to his attention? What is the system in that respect?

Mr. Russell: No. A case that comes in, whether it be litigation or a request for advice from a Department, will be dealt with in either of two ways. Let us take the advisory side first. If it is a straightforward piece of advice, not terribly difficult, not very complex or not important enough to warrant bringing it to the Attorney General’s attention or if it does not concern some matter which one believes the Minister would like the Attorney General’s personal involvement in, then it is dealt with by the official himself who will give the advice but always indicating clearly and expressly that it is his advice, not the Attorney General’s. We do not use the formula in the Attorney General’s Office, “I am directed by the Attorney General to say....”. That is a traditional civil service formula, but we do not use it unless the Attorney General has actually directed us to say it. Therefore the official would say “In my opinion etc.....”. The Department would therefore know that it is the official’s opinion they have got. If by any chance the Minister or even a senior official would prefer the Attorney General’s opinion then they can write back and say so. They very rarely do but that option is always open. On the other hand if the matter is of considerable importance or is of the type that one feels the Attorney General would like to know about then it is put before the Attorney General in the form of a submission, the whole file with the official’s submission on it is placed before the Attorney General. That is the advisory side. Litigation is conducted in the same way. There are some aspects of a case which are not worth troubling the Attorney General about - authorising the filing of a defence in a straightforward action or consenting to an adjournment in a straightforward case where they will get the adjournment anyway. One would not trouble him with it because something in the order of over 12,000 written items come into our Office every year, as well as innumerable telephonic matters - which constitute a very high proportion because some Departments take the view that if they telephone seeking advice they may get quicker advice than if they write.

Deputy Upton: What underlying principles determine whether something is brought to the attention of the Attorney General? Are those underlying principles reviewed on an ongoing basis or is it an ad hoc process?

Mr. Russell: One very quickly discovers whether a new Attorney General wants any change in the current arrangements. Occasionally an Attorney General will say: “I want to be kept informed about such and such a type of case or about such and such a particular case.” He may say: “The Minister for X mentioned to me today at Cabinet that his Department are looking for advice on something or other. Let me know about it.” That is the Attorney General’s involvement in it, so to speak. The officials have to exercise their professional judgment on the work they have which should be given to him and about which he should be told. They know that if they make a mistake in that, they will be told about it. Attorney Generals do not like being told about a particular matter in the Office by a Minister and having to say: “I do not know anything about that”. Some of them do not like that. Officials have to err on the side of caution.

Deputy Upton: Are there any guidelines laid down? Is there anything written down in terms of the principles?

Deputy Upton: So it is all ad hoc. In a sense, you make it up as you go along or you learn on your feet or whatever. Am I correct in suggesting that it is very much a matter for the judgment of the individual?

Mr. Russell: Yes. It has worked. I know this may sound slightly odd these days but it has worked - when I talk about these days, I am referring to a case exercising the minds of another committee. I would merely remark that that is one file in 12,000 that year.

Deputy Upton: Is this the practice in other countries in similar offices? Are there any principles or is there anything written down in terms of guidelines or principles in the corresponding office in the UK and European countries and so on?

Mr. Russell: I know about the English Attorney General’s Office. I do not know whether they have a written code. I doubt it, but I know that they exercise judgment on what they bring to their Attorney General and what they do not. I know that simply through long contact with them, and from knowing the people concerned. I suspect it is the same anywhere. I know it is the same in every Government Department in the State and I suspect elsewhere too, that a great volume of work is not put before the Minister. It cannot be because there is too much of it.

Deputy Upton: In relation to recruitment in your Office, in the course of your response to some other Deputies you spoke in terms of following a principle that you would not recruit someone who might not be up to scratch. Does the following of that principle leave you in a situation where you will leave vacancies, rather than put in somebody who might not be 100 per cent?

Deputy Upton: Is it desirable then that nothing be done or a blank be left when you could have somebody doing the job, even if they would not be doing it to the highest standard? Does that not leave you open to difficulties which can arise? Is half a loaf not better than no bread, if I can use that analogy?

Mr. Russell: No, because it would be a bad half loaf. It would not be a healthy diet.

Mr. Russell: - I am thinking of a particular occasion in the Office a short number of years ago when we sought people in a particular competition. We recruited through the Civil Service Commission in the ordinary way and we were not happy about the calibre of the candidates. In that particular competition, we appointed nobody. We advertised again about nine months later and we got two superb people who had not applied before. We were very happy with that situation because if we had taken a chance and taken one of the other unsatisfactory people we would be left with that unsatisfactory person forever.

Mr. Russell: I suppose this must sound rather vainglorious, but I think the answer is no.

Deputy Upton: Is there not an element of risk attached to recruiting anybody? They may be top class and they may go off the rails for one reason or another. Am I wrong in suggesting that you must live with a certain level of risk?

Mr. Russell: I suppose one has to, but the trouble about a small Office, where there is a very high level of delegated authority - which perhaps is not the right word, but I mean staff working alone or directly to the Attorney General or directly to the Department - where we do not have a line management system, such as in other Departments where an official will send work up the line where it can be corrected by his superiors if it is no good, or where he can perhaps be put writing the history of the Department or some innocuous task where he will not do any harm. We are too small an Office for that. If we had somebody who was not up to scratch, it would reduce the workload because someone else would have to do the work for him or correct it or supervise it.

Deputy Upton: You spoke of the total exposure of the State in terms of risk and so on regarding these court cases as something of the order of £1 billion. This is an enormous sum of money. Are you happy with the level of management capacity for that risk? Is there not a case to be made for getting in actuarial people who have some experience, something akin to the role which the NTMA provides in relation to managing that area? Would there not be a case for getting a professional to do that?

Mr. Russell: We believe that there is room and necessity for what I would call a commercial input there. By that I mean, cases being settled early on - when there could be, we hope, substantial savings in money by settling the case early, rather than at the door of the court - and identifying methods of, for example, obtaining from Departments adequate instructions in time to enable decisions to be made about whether a case should be fought or whether we should surrender - in other words, whether we are going to win or lose. We have been conscious of that for some time and we have, independent of the current expertise which we have in our Office, sought permission under the strategic management initiative to engage such an outside expert to come in and advise us on how we could improve handling these cases.

Deputy Upton: That is very much to be welcomed. Can you tell us about the indexing system in your Office?

Mr. Russell: The particular system we adopt has obtained for a very long time, although I do not know how long. It is not computerised. We have experts in now, who are assisting us in this. Shortly before developments reached a peak towards the end of last year, we had asked for assistance from the information technology division of the Department of Finance to advise us on what we could do to improve our indexation of files. We now have on the premises an officer who is exclusively an information technology person, who is devising methods which we are told will assist in this regard.

Deputy Upton: How does the Office compare with similar offices in other countries in terms of staff and management? To what extent are you and your Office associates aware of what happens in these other countries? What are the similarities and differences?

Mr. Russell: We propose now to make ourselves familiar with these things but it is true to say that we have not looked abroad to date to see how other countries manage on the basis, I suppose, that no great problems had been thrown up until the public perception arising out of the particular case, but this is something we are looking at in the context of the current expert assistance we are getting from outside.

Deputy Upton: But even without problems would you not think it is desirable to see what similar people are doing elsewhere just to be with the state of the art as it were?

Mr. Russell: Certainly we had not identified anywhere which was similar, for this reason: our Office is, I think, unique, certainly among the ones I know about which are common law countries, in that the Attorney General is the adviser to every member of the Government and to every Government Department. In England for instance, or in America, individual ministries have legal sections of their own which deal exclusively with that ministry or department, so that is a large difference between the two systems, but as I say we are now going to look abroad to see what we can learn.

Deputy Byrne: Chairman, the Office of the Attorney General has had an air of mystique attached to it up to recent times but due to tremendous exposure in the recent past everyone now appears to know about it. It has been very well defended here today I would have to say. It seems we have the perfect staff, we have never had any bad apples and I would like to congratulate Mr. Russell on that. He is doing a tremendous public relations job for the Office. In answer to a question from Deputy Upton he referred to a case exercising the minds of another committee which I presume is the case exercising the mind of Deputy Upton, definitely mine and I would say, remarkably, most of the people in the country at this time. Because of that same case and because of the difficulties that arose, have procedures in the Office changed that would lead to a situation where we would not have conflicting views from Attorneys’ General in the future?

Mr. Russell: Well I suppose whenever you have two lawyers there is always a risk of conflicting views.

Mr. Russell: I suppose that is why there are so many lawyers and so much litigation. After all in every court case there are presumably two lawyers each of whom says we are going to win and one of them is going to be wrong. In the particular case you are talking about there was a unique situation in this respect that there would never be any question of a Department being given two views or even told of the existence of an alternative view. When the Office advises a Department it is given one view. If in that particular case the official wrote a submission to the Attorney General in which he expressed a particular view and the Attorney General disagreed with it then the only view that would be passed to the Department would be the Attorney General’s view. They would not be told at any stage of the existence of an alternative point of view because they are entitled to one view and one view only. As I understand it, the particular occasion you are speaking about arose because the then Attorney General, two or three hours in his Office, was, at a moment’s notice - I hope I am representing the position accurately - asked for advice and had to come to a conclusion, and in conveying that conclusion he thought it proper to indicate that there was an alternative and indeed opposing point of view and he thought it proper to let the Government know that, hence the Government, it would seem, were given two conflicting opinions. If indeed it was clear what the conflict was about, that is another day’s work in another committee. What I am saying is that it was a unique case which arose out of a particular circumstance of the combination of a person in office for of a matter of a couple of hours and an urgent request for advice on a very complicated matter. In the ordinary course of events a Department is not given conflicting views; they are given one view only.

Deputy Byrne: Yes, Chairman, I accept that from the official the same view was given to both Attorneys’ General but would you agree it was remarkable? They differed substantially having read the advice from the official.

Mr. Russell: I am sorry; you speak of conflicting advices of two Attorneys General.

Mr. Russell: Two, yes. I had thought that when you spoke about two advices you were referring to advice given by the then Attorney General, Mr. Fitzsimons, to the Government which he accompanied by the statement “but I have to tell you that an officer does not agree with me”. I thought that that was the conflict you were speaking about it. Am I incorrect in that?

Mr. Russell: Yes, it was a conflict between Mr. Fitzsimons’s view and the view of an official which I was speaking about.

Deputy Byrne: I just feel it is remarkable that in such a high profile case given the level of expertise, that there would be conflicting views. My question in the initial stages was because of the case we are all speaking about - have procedures in the Office changed?

Mr. Russell: At the moment by direction of the then Attorney, Mr. Whelehan, which has of course been confirmed by each of his successors, the moment an extradition request arrives he is informed in writing of its arrival.

Mr. Russell: In every single extradition case, yes, irrespective of its nature, informed in writing the moment it arrives. Thereafter things follow the natural course, namely, the official prepares the submission and hands it and the file to the Attorney General but the point is that the Attorney General knows about it the moment it arrives and can give directions. He is told the nature of it, etc., in writing and can therefore give directions immediately as to the priority to be attached to it and indeed in a similar case again that would be an unnecessary act on his part. It will be given priority anyway.

Deputy Byrne: So the rainbow will not fade because of any bad procedures in the Office?

Deputy Byrne: Aren’t we all. Just to get back to a question on salaries, wages and allowances and Deputy Foley asked this in the first instance. I see where the Chief State Solicitor and staff are paid something like £2.5 million, how is that split up between salaries, wages and allowances?

Mr. Russell: I am afraid that question was asked earlier and I had to confess I cannot answer it but I can let you have it in writing.

Deputy Byrne: The ordinary person in the street, be he mischievous or otherwise, would be inclined to think that those guys are paid very well whereas some of it is paid in allowances. I am anxious to know what proportion is in allowances and how much is paid in salaries.

Mr. Russell: I doubt if there is any - I am open to correction on this, it is I suppose an accounting matter - difference between salaries and wages. I suppose one is a grander description of the other but I think they are the same thing. Now allowances can be for different things, performance of higher duties, for example typists who are engaged on word processors get an allowance for that, confidential typists -

Deputy Byrne: Do you have any idea of the proportion, that is what I am interested in?

Mr. Russell: I cannot give you a proportion but I can let the Committee have in writing the breakdown between those three headings.

Deputy Byrne: Finally, can I ask about the 33 State Solicitors in provincial areas who are part-time and are getting approximately £33,000 per year as part time payment. That seems a remarkable figure. What sort of time would be taken up in their week as part-timers for that amount of money?

Mr. Russell: The remuneration of a State Solicitor is divided into three parts. One is his personal salary for doing the job.

Mr. Russell: It varies. There are four grades of State Solicitor depending on the importance of the county.

Mr. Russell: When I say importance I mean its geographic extent. It would depend on how far he has to drive to a District Court, for example, every week and that type of thing.

Deputy Byrne: I am pleased to hear that. What amount of time is taken up as part-time by the State Solicitors?

Mr. Russell: He must, under his contract, devote as much time as is necessary to the discharge of his duties. He is not at large in that because he has to run the cases, for example, appearing in his courts. He has to conduct the cases and, therefore, one can see whether he is doing his work or not. In addition, he has to be available to advise the Gardaí when required. In a way he is not the master of the situation. He is providing the service whenever it is required of him. There is, I know, a level of dissatisfaction among State Solicitors at the remuneration and they propose to seek a review of their conditions of employment from the commission which used to be called the Devlin Commission. I do not know what it will be called now but it is the independent review body.

Mr. Russell: I would like to see their case. They do a good job. Obviously one would like to see what sort of a case they would put up. If they put up a good case they should get it.

Chairman: Thank you, Deputy Byrne. Mr. Russell, the Committee today are giving you a rather easy run because of the recent white heat in which you have been operating. I do not think it should be assumed that the Committee is happy with what it has learned about the Office of the Attorney General in recent weeks. I do not think there is any escaping the reality that the efficiency, effectiveness and the manner in which the Office of the Attorney General runs has been open to serious question.

Chairman: I do not think it would be appropriate for the Committee just to note the Vote in the Office of the Attorney General today, although we do note that there have been a number of outside people brought in in recent weeks and that the objectives of the strategic management initiative are now being applied to the Office of the Attorney General. It seems to me that it is the duty of this Committee to examine whether real progress has been made at a later date this year. I will be suggesting to the Committee that we defer - when I finish asking questions myself - coming to a final conclusion on this vote for a number of months to see what changes and improvements have been brought about in the next couple of months.

I want to ask you a few questions. First, in relation to the requests made by this Committee and suggested by Deputy Batt O’Keeffe that we write to counsel for the State at the Beef Tribunal, you agreed to write to them to see if they would reduce their fees. Did you write that letter?

Mr. Russell: There was a separate response to each because I wrote individually to each. I suppose they had one thing in common. There were no enclosures. I invited them in my letter to send a cheque or bank draft to me and I suggested it should be crossed and made payable to the Department of Agriculture, Food and Forestry, but they did not in fact send any cheques.

Mr. Russell: I can certainly read into the record if you wish the letter I wrote to each counsel. I wrote to each of them in identical terms.

Mr. Russell: Yes. Each member of the State legal team, namely, Mr. Henry Hickey, S.C.; Mr. Harold A. Whelehan, S.C.; Mr. Conor J. Maguire, S.C.; Mr. Colm Ó hOisín, B.L.; and Mr. J. Gerard Danaher, B.L. I wrote to each in the following identical terms:

I have been requested by the Committee of Public Accounts of Dáil Éireann to write to each of the counsel who represented the State at the Tribunal of Inquiry into the Beef Processing Industry. The Committee have indicated their concern at the large amounts of the fees paid to State Counsel at the Tribunal and have expressed the view that they were excessive, particularly in the light of the length of the inquiry. They also have referred to the fact that it appears consultants who were engaged to assist the State legal team agreed after a period to reduce their daily rates of remuneration. In view of the large amounts involved the Committee have asked me to request counsel to consider reducing the levels of the fees paid to them and to repay to the State some of the fees. I would, therefore, be grateful if you would give consideration to this request and let me have your views on it so that I may place them before the Committee. As I am due to appear again before the Committee on 12 January 1995 a response from you in advance of this date would be much appreciated. Cheques or bank drafts which may be sent to me should be crossed and made payable to the Department of Agriculture, Food and Forestry. I am writing in similar terms to each one of your colleagues.

Mr. Russell: There were shorter replies from some of the others. None of them were what one might describe as positive.

I received your letter of 29 December written by you on behalf of the Committee of Public Accounts of Dáil Éireann. Please advise the Committee that the fees agreed by the Attorney General, Mr. Murray, with the State Counsel were in my opinion not excessive having regard to the extremely complex nature of the brief and the extent of the commitment required by acceptance of the brief. I ceased to be a member of the State team at the Tribunal on being appointed Attorney General on 28 September 1991. In my view the request to me to repay a portion of the fees which were paid to me on foot of a concluded agreement is unjustified and inappropriate”.

I have your letter of 29 December 1994 concerning the above and I note its contents. The fees paid to me were agreed fees. In the circumstances the Committee’s request is inappropriate.”

I refer to your letter of 29 December 1994 regarding fees paid to me in connection with my work for the Tribunal of Inquiry into the Beef Processing Industry. I note your request that I should consider reducing the said fees and returning a portion to the State. I have considered your request. The fees I received were agreed and I do not believe they were excessive. Consequently, I must decline the request.”

I refer to yours of 29 December. The fees in question were agreed fees. They were agreed in excess of three and a half years ago. They have been in the public domain for most of that time. It is now almost two years since I last received a payment in respect of my work at the Beef Tribunal. In these circumstances I am sure you will appreciate why I do not intend to act as requested by the Committee.”

I received your letter of 29th December last written at the request of the Committee of Public Accounts of Dáil Éireann.

I note that the Committee have indicated their concern at the large amounts of the fees paid to State Counsel at the Tribunal and have expressed the view that the fees were “excessive”. I think I should make the following points:

1. As you and the Committee are no doubt aware, the Brief and daily Refresher fees paid to State Counsel were set by a former Attorney General. When it became apparent at an early stage that the Tribunal would not sit on some days, which were reserved for essential research and preparation, a substantially lower daily rate was agreed during the inquiry in respect of those “non-sitting days” with his successor. All the fees were paid and accepted on the basis of agreement.

2. The level of fees paid to State Counsel and, I believe, to Counsel for the Tribunal were by no means excessive given the nature of the Tribunal which was the most complex in the history of the State, the multiplicity of State and other agencies involved and the vast amounts of documentation which required careful consideration. The Brief and Refresher fees were lower than the rates charged in commercial cases in the Four Courts of considerably less importance.

3. The length of the Inquiry which added to its complexities was entirely outside the control of State Counsel and, speaking for myself, I would have preferred a shorter Inquiry so that I could have endeavoured to find and resume my ordinary practice at a much earlier time.

4. The decision of the consultants assisting the State Legal Team to reduce their daily rates of remuneration, which was entirely a matter for them, was, I believe, taken during the Inquiry as was the agreement of State Counsel to accept lower daily fees for these “non-sitting days”, as mentioned above.

The Committee have now asked State counsel to consider reducing the levels of fees paid to them and to repay to the State, some 18 months after the conclusion of the inquiry, some of the fees. Lest it may have escaped the attention of the Committee I should point out that I have, in fact, repaid to the State some 50 per cent of the fees received by way of income tax and appropriate levies. I can therefore see no valid reason why I should repay any further money to the State out of taxed income in respect of fees which I consider were properly and fairly agreed and earned. I have no hesitation in declining the request of the Committee.

Chairman: Thank you for reading that to us. I want to look back into more, I suppose, more productive territory. Could you explain to me, Mr. Russell, the relationship between your Office and that of the Office of the Director of Public Prosecutions?

Mr. Russell: Well, the Director of Public Prosecutions is by statute - the Prosecution of Offences Act, 1974 - an independent person, an independent law official. Therefore, there is no relationship really, certainly from a financial point of view we are entirely independent of each other. Under the Act the Attorney General and the Director of Public Prosecutions can consult together from time to time and whenever necessary. In the case of one or two particular crimes specified in the Act the consent - for example, prosecutions under the Official Secrets Act - of the Attorney General is required to the continuance of a prosecution initiated by the Director. Other than that, one or two other small matters stated in the Act of 1974, there really is no formal relationship between the two Offices.

Chairman: No, I asked the question because when we had the Accounting Officer for the Office of the Director of Public Prosecutions before us last year, in fact we recalled him three times, we asked the consultants to be sent into that Office so dissatisfied was the Committee with what they felt was the inefficiencies of that Office. One area that I am concerned about myself is also how this Committee can measure the efficiency and effectiveness of the courts, without interfering with the independence of the courts, but there has to be some accountability of the courts. I am raising this because the whole legal area seems to be an area which needs to be considered. It is not only the Attorney General’s Office but the DPP’s Office and perhaps the running of the courts that needs to be considered in relation to efficiency and effectiveness. I know the courts come under the Department of Justice but does your Office have any role in observing the efficiency of the courts, in making comments or suggestions as to how they might be improved?

Mr. Russell: I imagine if the Minister for Justice ever wants advice from the Attorney General or his Office, he gets it in regard to any matter concerned with the courts and, of course, the legislation which is from time to time enacted and is the responsibility of the Minister for Justice. That legislation would be the subject of advice and drafting by the Attorney General’s Office - the Courts Acts, Courts Bills, Courts and Courts Officers Bills and so on.

Chairman: But it is really a matter for the Department of Justice, it is not a matter into which you have any significant input.

Chairman: Could I ask you now in relation to the running of your Office in the past, is there a management committee in the Attorney General’s Office?

Mr. Russell: No. Of course there have always been constant discussions among senior people in the Office. That is the advantage of a small office.

Chairman: Yes but there is no management committee in the sense that there is not a weekly board meeting to monitor progress or lack thereof.

Mr. Russell: Now there is a management committee - a managing advisory committee - formerly there was not.

Chairman: How does the Attorney General satisfy himself that his Office is being run to the optimum efficiency?

Mr. Russell: I suppose on results mainly. He would meet me for instance, I suppose, maybe ten or 15 times in the day on different matters. He would meet other officers too as occasion demanded and he would constantly have before him the products of their work, so to speak, that is to say submissions prepared by them and submitted by them to him. He would have that. He would see the files of litigation because when documents are put before him the whole file is put in from of him.

Chairman: Okay, this is an issue which keeps arising in respect of many Departments where there doesn’t occur to be a proper management information system or certainly there does not seem to be a “board”, to use that word, which monitors progress and is told all relevant information which arises in any week, any progress or lack of progress which has not been made in the preceding week but we will raise that in a more general way another time. Could I ask Mr. O’Farrell from the Department of Finance, your Department is also the Department of Public Service, what is the role of the Department of Public Service in overseeing efficiency of other Departments in recommending improvements or changes or do you see yourself as having any role?

Mr. O’Farrell: Very much so. It would be mainly in relation to human resources which is certainly the most important and costly resource in terms of output, we would allocate those as required. But only as required for essential work because the implications for public expenditure of likely sanctioning of additional staff are so big we would scrutinise all staffing demands from any civil service Department very carefully and only recommend additional staff -

Chairman: Is there an organisation and methods section, for instance of the Department of Public Service?

Chairman: And do they go into Departments and say “look we want to have a look at your management systems because we think you might ...... ”, do you ever recommend changes or do you lay down structures or guidelines?

Mr. O’Farrell: Yes, frequently. It would usually arise where a staffing issue otherwise arose or if the size of the management services unit would be such that it would not be constantly going into Departments on a random basis. There would usually be some reason for it but we would on a regular basis, and through the conferences of secretaries, assistant secretaries and principals, try to promote and recommend the best practice in the Civil Service as a whole.

Chairman: We also have to learn from the experience of what has been highlighted in the Attorney General’s Office. I have to say, incidentally, that if the fault is allocated in respect of the apparent shortcomings in the Attorney General’s Office, the fault cannot be exclusively in that Office. It seems to me that the public service section of the Department of Finance itself must feel that it has been found wanting.

To return to the point which was raised earlier Deputy Batt O’Keeffe, I would hate to think, as would this Committee, that we will have to wait for some other problem to be raised in another Department before the public service section of the Department of Finance acts. I would like Mr. O’Farrell to return here in a month’s time to tell us, in the light of the recent experience in the Attorney General’s Office, what system of review is now envisaged by the Department of Finance’s public service section to look at Votes and Departments from time to time to ensure that they have the most up to date structures and management systems.

Mr. O’Farrell: I think what exists is a regular, ongoing process. Obviously, I could consult with the management services review section and give an indication of their modus operandi and reviews which they have done. However, resources are constrained - and needfully so, of course - in the Department of Finance, as in other Departments.

Chairman: I know that but we are not allowed as a Committee to question policy issues. It seems a retrograde step that public service was put back into the Department of Finance because it inevitably happens that financial considerations always predominate over personnel considerations, which is sometimes counterproductive in the end. No major company would allow its personnel function to be submerged in its finance function. That is what we have done as a State. However, that is a policy matter for Government.

To take up Deputy O’Keeffe’s suggestion, we should request the Second Secretary of the Department of Finance in charge of the public service to come before us in a month’s time to tell us what he has learned from the ongoing controversy in relation to the Attorney General’s Office in respect of all other Departments and what changes are going to take place in the public service section in reviewing organisational methods in other Departments so that we are not left waiting for another crisis to happen. We will ask Mr. Hurley to come before us in about a month’s time to discuss this. Is that agreed?

Chairman: I overlooked calling Deputy Broughan who wanted to ask a question. I will call you after him.

Deputy Broughan: My question relates to what you were saying, Chairman, on the whole question of management systems. Mr. Russell, you probably appreciate that many of us who are not lawyers have often obtained our partial knowledge of the law from looking at television and films. Lawyers are very popular characters in fiction, the media generally, the theatre etc. Would it not be a fact that your Office and its whole professional ethos very much resembles one of those stuffy, old, British type legal institutions rather than the kind we are familiar with from American television, for example, where the senior staff seem to gather every few days with the head of the firm to go through the current cases. Your situation is more like the courts of justice in the Strand, or wherever it is in London, where people seem to do their own thing in a tradition which has gone on for hundreds of years. We adopted this system from the British and have retained it and not moved with the times. Is that not the fundamental problem that led to all the controversies and put my colleagues across the table out of Government? Fortunately, I am still in Government in a different combination. Is it not the root cause of the whole thing, that we had an old style, fusty, musty kind of outfit of clubbable types? I am interested in your comments about the kind of people you take into the organisation. Was this not one of the problems which you detailed?

I wanted to ask you briefly about the Beef Tribunal. According to what you said, in the market of the Four Courts people can earn two and three times what you can earn or rather to put it another way, I am accepting your expertise because you demonstrated it very graphically and dramatically at the other committee, you could be earning three or four times what you are earning now if you were in private practice. Can we look forward to a situation whereby we will have a modern management structure in your organisation and that we will not have the kind of disastrous circumstances which did emerge over the past year?

Mr. Russell: Well I certainly would hope that as a result of the examinations which are taking place at the moment we will be shown ways of improving our performance. I hope so and anticipate that that is more likely than not. As regards the sort of Office we are, I know as little about American firms as you do but I do not think we would call ourselves too stuffy, we would like to see ourselves as vibrant, forward looking and thrusting.

Deputy Broughan: Just the other point, those letters you read out are amusing but the issue is not amusing. When we get back to the basic point and I think I raised it first Chairperson, you took it and ran with it in your inimitable way in relation to the fees that were charged. I still think it is an outrageous rip-off of the Irish people even though those people you read out have cleverly given their response. I am still amazed and angered at how that situation developed. You said previously at this Committee, that you became concerned at the alarming rise, or whatever it was, of the moneys paid to those barristers. You became concerned as a taxpayer, I cannot paraphrase it but in one of your clever metaphorical type sentences you said “I became concerned as a taxpayer but as a public official I did not see how it could be changed when we had gone down that road”. Was that good enough? The Government of renewal has now a proposal for a committee of investigation and we will not allow again these Lotto winners in the Four Courts to have any more huge wins, whatever problems we run into on the political and economic front. Accepting all of that, was there not a disastrous lack of urgency and determination between yourselves, Agriculture and Finance in actually doing something to halt this dramatic spiral of public costs?

Mr. Russell: Well I suppose in a way one must go back to the beginning of it. The amount that the Tribunal cost was really determined by its length. If it had been shorter it would have been cheaper, and its length was determined by its terms of reference which were enormously wide and which resulted in the Tribunal finding that it had to investigate 36 pages of separate allegations against a wide variety of people some of whom were princes of commerce but others of whom were ordinary civil servants and ordinary workers. Given that these people’s reputations and livelihoods had been placed on the line by, if I may say so, the Oireachtas they had to be defended and the way you defend yourself is by a lawyer traditionally where something important is at stake. No one anticipated that the Tribunal would last as long as it did. If there was another tribunal tomorrow into any matter which the Oireachtas decided I have no doubt that the question of the remuneration of counsel would be approached at the beginning of it with the benefit of the lessons we have learned from the Beef Tribunal. That would be the case in any event but that has been re-enforced by the Department of Finance instructions which have been circulated to all Departments. All one can say is we have learned.

Mr. Russell: Certainly every effort will be made to ensure that, consistent with the state - by which I mean the public - being properly defended, there will not be any excessive charges.

Chairman: I do not believe that is an adequate defence of the role of the Office of the Attorney General. In the United Kingdom they have pre-set standards for tribunals as I understand it. I was astonished when we came to looking to this as a Committee to find that the Attorney General’s Office or no other Office set down any criteria in advance. It would appear this was the first Tribunal in history where there were no interdepartmental committee monitoring costs or overseeing a deficiency or laying down the implications in advance of what the timing should be etc., but we should criticise.

The other point apart from the outrageous level of fees which in their arrogance, lawyers seem to think are reasonable, we have accepted in this jurisdiction the right for separate legal representation. You told us 77 parties awarded their costs but there are 116 lawyers which mean that many of the parties had more than one lawyer. Why should we pay for more than one lawyer?

Mr. Russell: If one has a barrister one has to have a solicitor. They come in pairs in that regard. A number of parties were content to be represented by a solicitor only and these were parties who had a minor role to play in the Tribunal and who felt that their interests would be adequately looked after by a solicitor. Others chose to be represented by counsel. That might be because the solicitor advised they should have counsel or might have advised two counsel. I am not aware of it but I have no doubt that there were cases where the counsel of clients’ choice said, yes, I will act for you in this case but I must have junior counsel with me to do the donkey work, to sort out the papers. I am not going to read tea chests of papers at night in order to appear for you by myself. I have no doubt that happened. That is how one ends up with that. The Committee will recall that in the final outcome the Tribunal decided what was a proper level of representation and in many cases the Tribunal said, yes, you had three lawyers but we are only going to allow you the cost of two. There were instances where they had two and they were allowed the cost of one. There were many instances where the Tribunal cut down the number of counsel so the client had to pay the other lawyers out of his own pocket. They did not get the costs from the State.

Deputy O’Keeffe: Just a last question. Given the magnanimity of the State counsel there is no point in asking the others if they will present us with a clawback. There is a serious issue where we have agreed fees with the State counsel but we have not agreed fees with counsel representing outside groups. Is there a possibility that when their fees are presented to the Taxing Master that they could be way above what have been charged by the State counsel? Have we any mechanism by which we can control that system?

Mr. Russell: In the case of some of the major parties at the Tribunal who have been awarded costs against the State I would not be surprised at whatever level of fees emerges. What counsel asks for and what the solicitor presents to the Taxing Master is not necessarily what the Taxing Master will allow. The State will be represented there to strive to ensure that no excessive fees are allowed. At the end of the day it is the business of the Taxing Master who is an independent full time official appointed by the State, to decide what is fair and equitable. Legislation is in the course of preparation in the Department of Justice in the form of the Courts and Court Officers Bill which is being examined there. That has within it provisions in regard to the taxation of costs which are designed to improve the powers of the Taxing Master to cut down costs.

Chairman: There is a provision for the Minister to lay down a scheme of control.

Mr. Russell: The Minister certainly is going to be given power in default of the rules - making committees lay down scales of fees and costs.

Mr. Russell: The Bill as published. The aim of the legislation is to strengthen the hand of the Taxing Master in reducing fees.

Mr. Russell: That raises a difficult legal question. We have given certain advice to the Department of Justice on that which they are considering.

Chairman: Okay. We will adjourn at that. I want to thank Mr. Russell for coming before us. The Committee has already decided that we should invite Mr. Hurley, Secretary, Public Service Management and Development in the Department of Finance, to come before us in a month’s time to look at their role in relation to all Departments of State in future to avoid a repeat of what has happened in the Attorney General’s Office. We are not surprised there is what appears to be shocking inefficiency.

In relation to the Attorney General’s Office itself we adjourn the hearing for four months so as to see what improvements have been brought about as a result of these three wise men and their strategic management initiative. Is that agreed? AGREED.

Deputy Foley: On a point of clarification can I take it we are accepting the Vote?

Deputy Foley: In fairness to Mr. Russell, he has been very forthcoming today. If we need to bring him back later on.......

Chairman: Well I have no objection to that. We will note the Vote. In May we would again have Mr. Russell before us to see what changes have taken place.

Deputy Foley: One point, you are saying we note the Vote I am saying we accept the Vote.

Chairman: I want to thank Mr. Russell. It is now 1.10 p.m. I would suggest to the Committee that we would defer the Agriculture Vote to dates to be agreed between us and the Department. The probable next date is 9 March. We will leave it to the Clerk.

MIONTUAIRISC NA FIANAISE

MINUTES OF EVIDENCE

AN COISTE UM CHUNTAIS PHOIBLÍ

COMMITTEE OF PUBLIC ACCOUNTS

Déardaoin, 12 Eánair 1995.

Thursday, 12 January, 1995.

Mr. John Purcell (An t-Ard-Reachtaire Cuntas agus Ciste) called and examined.

Mr. Phil Ryan, Ms. Bríd MacSweeney, Mr. John Thompson, Mr. Paul Byrne, Mr. Jim O’Farrell, Dept. of Finance representatives, in attendance.

APPROPRIATION ACCOUNTS 1993

VOTE 13 - OFFICE OF THE ATTORNEY GENERAL.

Mr. Matthew Russell, Senior Legal Assistant, Office of the Attorney General called and examined.

Mr. Jim O’Farrell, Dept. of Finance representative, called and examined.