Peter Power (Limerick East, Fianna Fail)

The legislation being considered by the House today proposes amendments, in particular, to the Prevention of Corruption (Amendment) Act 2001.

I will now set out more fully the provisions of the Bill, which amends section 1 of the Prevention of Corruption Act 1906 as amended by section 2 of the Prevention of Corruption (Amendment) Act 2001. Section 1 contains a single definition, specifying that the Prevention of Corruption (Amendment) Act 2001 is referred to in the Bill as the "Act of 2001". Section 2 of the Bill amends section 1 of the Prevention of Corruption Act 1906 as amended by section 2 of the Act of 2001 in a number of ways; in particular, at subsection (2) by the substitution of the term "consideration or advantage" for the term "or consideration". The OECD has suggested that the term "consideration" be expanded to ensure that it describes other forms of advantage which might be used as an inducement to someone to commit an offence under the legislation. The words "or advantage" have been added to clarify that as well as monetary gain, all types of advantage come within the offence.

In section 2, the Minister also proposes to expand the definition of "agent" to ensure the provisions of the Bill apply to people working for or on behalf of the public administration of any other country, including persons who may be under the direct or indirect control of another state. The term "agent" is also expanded to apply to agents of an organisation established by an international agreement to which Ireland is not a party. It is understood that the OECD would favour the omission of terms such as "agent" altogether from the Irish anti-corruption legislation, which it considers retains implications inherent to the agent-principal relationship, in other words, that it implies subordination and a relationship of trust. However, the Government is advised that by expanding the definition of the term "agent" in the 2001 Act and by expanding on it further in this Bill, there is therefore no real difficulty presented by the use of the term "agent" in the context of this legislation. There is now an extremely broad definition of this term within the legislation.

A further amendment contained within this section is the insertion of a definition of the term "state", meaning a state other than the Irish State. The term "state" denoting a foreign jurisdiction will include, first, a territory, whether in the state or outside it for whose external relations the state or its government is wholly or partly responsible; second, a subdivision of the government of the state, and, third, a national regional or local entity of the state. The effect of this is to extend the jurisdiction and scope of the legislation.

Section 3 makes two drafting amendments in subsection (1) by inserting the phrase "(whether or not a person is an agent)" after "where a person" in line 1 and by substituting the words "relevant section" to replace "section 1 (inserted by section 2 of this Act) of the Act of 1906".

Section 3 also deals with the issue of extra-territorial jurisdiction in regard to the offence of bribery of foreign public officials. Normally, Irish law is territorial in its jurisdiction and applies only to acts done in Ireland. The intention here is to ensure that an act which could constitute a corruption offence in this State is also an offence if committed outside of Ireland, which in most instances is likely to be the case in the context of bribery of foreign officials. The provision, as it is currently set out, will allow this State to exercise jurisdiction in circumstances where the benefit of the relevant offence is derived by an Irish citizen or someone who is ordinarily resident in this State, a company registered under the Companies Acts, any other body corporate established under the laws of the State, or any legal person that has its head office in this State.

The issue of the exercise of extra-territorial jurisdiction arises increasingly frequently in the context of a variety of our legislative provisions. Since the publication of this Bill, the Department of Justice, Equality and Law Reform has received comprehensive advice from the Office of the Attorney General on the question of the application of extra-territorial jurisdiction generally. These advices were not furnished specifically in regard to this proposed Bill. However, in light of this advice, the Minister is giving consideration to the application of a more consistent approach to the issue in a number of legislative proposals. The Minister would like to give notice to the House, therefore, that he may look further at the extra-territorial jurisdiction provision in this Bill with a view to a possible amendment on Committee Stage. The Minister is also of the view that the OECD may favour a broader exercise of extra-territorial jurisdiction than is currently outlined in this Bill.

In section 3, which expands jurisdiction for the corruption offence, subsection 2(d) includes, among other categories, any other body corporate established under the laws of this State. In the course of discussions between the Department of Justice, Equality and Law Reform and the OECD on this issue, it was suggested by the evaluation team that a specific reference to unincorporated bodies to encompass registered clubs, and other such bodies might also be included. The Minister intends to look at this issue again in consultation with the Office of the Attorney General and, if it is considered necessary and if the House permits, will give consideration to an official amendment on this point on Committee Stage to address the OECD concerns in this regard.

Section 4 amends the Act of 2001 by inserting a new section 8(A) in that Act. This amendment provides for the protection of persons reporting offences under the Prevention of Corruption Acts, 1889-2008, which is the proposed collective citation of the anti-corruption legislation, following enactment of this measure. The new provision provides immunity for any person who reports in good faith offences under this legislation to an appropriate person, and sets out that an individual shall not be liable in damages should they report, in writing or otherwise, their opinion that an offence under the Acts has been or is being committed.

The protection applies unless it is proven that the person making the report has not acted reasonably or in good faith. The section also contains a provision whereby an employer shall not penalise or threaten an employee who makes a report of his or her opinion that an offence under the Acts is being committed. Examples of the penalisation in respect of which redress may be sought include the following: first, suspension or lay-off or dismissal within the meaning of the Unfair Dismissals Acts 1977-2005; second, demotion or loss of opportunity for promotion; third, transfer of duties or change of location and place of work; and, fourth, unfair treatment including selection for redundancy.

Section 5 amends section 9(1) of the Act of 2001. That section enables responsibility for an offence under the Corruption Acts 1889 to 2005, where committed by a corporate body, to be attributed to certain of its officers so that individuals, as well as the corporate entity, can be held liable for the offence in particular circumstances. The new provision substitutes the collective citation "Prevention of Corruption Acts 1889 to 2008" to ensure that the provision in respect of offences by corporate bodies also applies to offences under this Bill.

Section 6 relates to the protection for persons reporting offences as set out at section 4, and contains a Schedule providing redress for employees penalised if adverse action is taken against an employee reporting an offence under the Acts in good faith. The procedures set out in the Schedule include complaints to a rights commissioner, and there is provision for an appeal of the commissioner's decision to the Labour Court by the parties concerned.

Section 7 is a standard technical provision providing that the Prevention of Corruption Acts 1889 to 2005 and this Bill may be read together as one.

The Department of Justice, Equality and Law Reform has been working closely with the OECD evaluation team on the development of this legislation. The Minister has asked me to take this opportunity to place on the record his acknowledgment of the constructive input of the OECD into this process. Officials will continue to work with the OECD in the future to ensure full compliance with the Convention on Bribery of Foreign Public Officials in International Business Transactions.

Where it was felt it was appropriate to do so, the Department of Justice, Equality and Law Reform took into account the views expressed by the OECD and drafted these legislative amendments accordingly. However, there was not always agreement with the views of the evaluation team in every case. In some instances the legal advice received from the Parliamentary Counsel was at variance with views expressed by the evaluation team. We have also retained for the present in these amendments some of the terminology that was a feature of the earliest anti-corruption legislation which perhaps the OECD evaluation team might have preferred to have been omitted.

The evaluation team has expressed the view that the various anti-corruption measures on the statute would benefit by being harmonised. The OECD has expressed the view in its evaluation report on Ireland, which was published last year, that, for example, it would wish to see a harmonisation between elements of various statutes. However, our advices indicate that this issue does not present any practical difficulty from a prosecution point of view.

The Minister has no fundamental objection to the consolidation of the anti-corruption legislation in the future, thereby putting all of the related anti-corruption legislation under one cover, as it were. It is understood that the Law Reform Commission has completed the restatement of all anti-corruption legislation. The Minister expects to have an opportunity to examine the Law Reform Commission's work and will then give consideration to the question of consolidation.

It is expected the OECD examiners may recommend in their forthcoming evaluation report that the Government should support the work of the Criminal Law Codification Advisory Committee, with which the Department of Justice, Equality and Law Reform is involved, in conjunction with University College Dublin, towards the codification of all corruption offences. Consolidation and restatement of the legislation is an essential prelude to the codifying process. The Department of Justice, Equality and Law Reform is fully supportive of the codification project which it was instrumental in establishing. While it is early days yet in the work of the Criminal Law Codification Advisory Committee, the House can be assured that the Department will work closely with that body if and when it comes to consider codification of the various anti-corruption statutes. I commend this Bill to the House.

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