Brendan Howlin (Wexford, Labour)
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I greatly appreciate that. I warmly welcome the written and detailed submissions from the Department of Justice, CAB and Mr. Browder, with whom I have had conversations.

I will make a few general points. First, Magnitsky is a general heading. When I looked at this some years ago, and this predates any current human rights abuses ongoing in Ukraine, I wanted to see how we could have something effective in our jurisdiction. I was a member of the Government when the Proceeds of Crime Act 1996 was enacted. I remember many of the arguments made at the time, with all due respect to some of the arguments I have heard just now, about how impractical that unique new legislation would be to confiscate assets from people without a criminal conviction. It was groundbreaking at the time, and impractical. In fact, I had a discussion last night with Mr. Greg Sparks to refresh my memory - he was programme manager for Mr. Dick Spring at the time - and he gave me chapter and verse on how difficult it was to convince people, including senior officials in the Department of Justice, that this was actually a very practical thing. It is now regarded as the most practical legislative measure we have to combat crime.

I will briefly go through the purpose of the Bill. The purpose is to do a couple of simple things. One is to enact that the conduct that takes place outside the State would be criminally unlawful if it occurred within the State and can be declared as criminal conduct if it would constitute an offence under the law of the State if it is connected with a gross human rights abuse and some property obtained or received as a result of or in connection with that conduct, that is, the gross human rights abuse, is situated within the State. The rule would relieve CAB of the dual criminality issue. CAB addressed that fairly in its submission. I do not think it has a difficulty with the issue of removing the dual criminality test. If it has, it should let me know. In terms of gross human rights abuses, it would be a vacuous thing to try to do in some jurisdictions where obviously human rights abuses will never be made illegal and, in fact, are part of the normal operation of government.

In the CAB submission, it has adopted the argument that was put forward in the written submission from the Department of Justice which, at its core and is the core argument against it, is that while abuses may be committed by a person who is engaged in other profit-generating criminal activities such as corruption, fraud or embezzlement, the assets will flow from other crimes rather than from the human rights abuses themselves, and that the primary provisions of the existing 1996 legislation, in common with other confiscation frameworks, can only be used against the assets that are obtained from such criminal conduct. That is the core of its case. Even in situations where the human rights abuse is committed to cover up such profit-generating crimes, it is still essential, in CAB's contention as I read it, that the assets to be seized are the product of those crimes.

I challenge the Department's contention that the confiscation powers can only be used against assets that are the result of criminal conduct. The definition of "proceeds of crime" is set out in section 1 of the 1996 Act as meaning "any property obtained or received at any time ... by or as a result of or in connection with" criminal conduct. The passage quoted in the submission concentrates on two of those six tests, any one of which must be satisfied before property can be the proceeds of crime under the Act - if it was obtained by criminal conduct, if it was obtained as a result of criminal conduct, if it was obtained in connection with criminal conduct, if it was received by criminal conduct, if it was received as a result of criminal conduct and if it was received in connection with criminal conduct. They are the definitions set out. I contend, contrary to the point that was made, that it is not necessary that it flows from crime. It is sufficient, and I was at the Cabinet table when these matters were discussed and agreed, that they were obtained or received in connection with crime, which obviously is a less onerous test.

If an individual or an official of a foreign state routinely abuses his or her position to commit gross human rights abuses, whether he or she is acting licitly or illicitly in connection with the office, it is our contention that if there are goods got in connection with the commission of those human rights abuses, he or she would be liable to have those goods confiscated under the Proceeds of Crime Act. If the definition in the Bill I have drafted is not sufficiently clear, it is possible to amend it to make it sufficiently clear.

More troublingly, and I will end on this point, the submission goes on to assert that the seizure of assets arising from criminal conduct outside the State generally requires the co-operation of the authorities of that state. Where gross human rights are alleged against persons in positions in authority, it is self-evident that this would present significant challenges. The submission is willing to contemplate scenarios where a foreign state is co-operating with Irish authorities and in seeking Irish assistance to recover those assets that were corruptly obtained that are now located in Ireland, generally a legal issue with dual criminality does not arise in these cases, which are dealt with by way of mutual legal agreements.

My concern is this argument is unwilling to consider a scenario where the official in question serves under an uncooperative foreign state. However, that is precisely the whole concept of what the Magnitsky laws are designed to deal with, namely, an uncooperative abusive foreign state where there are officials trying to act properly and whistleblow on that activity. It seems the two contentious points that have been raised can be addressed. First, by making it clear this direct connection of proceeds to a human rights abuse is not the definition intended in the original 1996 Act and, second, the co-operation of a foreign state will obviously not happen in this instance.

I am conscious the legislation I am proposing has universal application. It is not simply confined to Russia, about which there has been some commentary today. Mr. Browder is generally concerned with that but this Bill pre-dates the current activities of the Russian Federation in Ukraine. It deals with any human rights abuser who wants to stash goods in Ireland. Bluntly, the points made about the difficulties in getting evidence, or the challenges in following through on the legislation, have never been an impediment to us as legislators. If were dealing with, for example, domestic abuse, it would never be a matter for us to say we could not deal with it because it is too difficult to get into the home to find out about the abuse or get a witness statement. If something needs to be legislated for because it is the morally right thing to do, we should enact legislation no matter how challenging or difficult it is.