New procedures were announced yesterday in the Attorney General's office, intended to ensure that all potentially controversial cases are monitored and brought to the attention of the Government.
Six proposals were announced by Taoiseach Bertie Ahern. The first was that in all constitutional actions, the pleadings and submissions (the legal arguments that are outlined in advance in a case) must be personally approved by the Attorney General.
Constitutional cases are always taken against the Attorney General.
While such personal approval is not new, it must now be confirmed formally by the Chief State Solicitor's Office, which represents the Attorney General in all legal actions, and by the director general of the AG's office, who runs all other aspects of the work of the AG, that the arguments have been personally approved.
A further new departure is that copies of these pleadings and submissions must be forwarded to any Government department that has an interest in the proceedings. For example, if a law is being challenged, the department that would normally deal with this piece of legislation, even if it was not a party to the action, would have to be so informed of the case and of the arguments being put forward.
In addition, the Secretary to the Government is to receive briefings every two months from the Attorney General on the progress of any such litigation. This would include an assessment of the potential impact of the litigation, if successful, on the enforcement of the law.
In a move intended to tighten up reporting mechanisms in the Attorney General's office, written confirmation must be given to the AG that the Secretary to the Government and the relevant departments have received notification of any pending constitutional cases, and the pleadings and submissions, where appropriate.
It was felt that two-monthly briefings of the Secretary to the Government were adequate, as cases take much longer than this to wend their way through the court system.
The CC case that resulted in Section 1 (1) of the Criminal Law (Amendment) Act of 1935 being struck down two weeks ago had its origins in a High Court action almost two years ago, and had a full hearing in the Supreme Court a year ago which rejected the claim but then sought further arguments on the constitutional issues.
Officials of the AG's office and of the Office of the Director of Public Prosecutions are to meet every two months to review the effect, if any, of any constitutional challenge on the enforcement of the criminal law. This will bring the expertise in the criminal law that exists in the DPP's office into the process of reporting to the Government.
Flowing from all this, the Taoiseach will bring quarterly memoranda of information to the Government, which will give regular updates on important litigation being handled by the DPP, the Office of the Attorney General and their respective solicitors' offices.