Alan Shatter (Dublin South, Fine Gael)

I thank the Deputies on all sides of the House for contributing to this debate and for what could correctly be described as the broad support for the measure contained in the Bill. I listened with interest to Deputies Kirk and Calleary and others from Fianna Fáil. It is correct that the previous Government started some work on this measure but this work was by no means complete. The Bill was not in a position to be published when we took office. Very substantial additional work was undertaken on the legislation as a priority following the formation of the new Government. A contribution to that work was also made by the new Attorney General. Without the work that was undertaken and the prioritisation of the measure in a manner in which it had not been prioritised by the previous Government, the measure would not be before the House at this stage. Having said that, I appreciate greatly the support expressed for the Bill by all Deputies who spoke. I thank them for their generous comments and for their good wishes. As this Dáil proceeds into later weeks and months, perhaps the good wishes from the Opposition side of the House will not be quite as lavish but they are appreciated nevertheless.

I want to make one specific comment on this Bill. If I reiterate a point I made at the start of Second Stage, I apologise. The Bill is laying down a very serious marker that there will be no impunity for white collar criminals. There are individuals who have engaged in conduct that is the subject of Garda investigation and consideration by the Director of Public Prosecutions. If the latter is satisfied their conduct is unlawful, I hope criminal proceedings will be initiated. It is understood on all sides of the House that the Minister for Justice and Law Reform must be very careful as to how he expresses himself with regard to issues of criminality in the context of the investigative and prosecutorial processes and, more particularly, as to what may occur when individuals come before the courts. It is of the greatest importance that nothing be said that could in any way prejudice a prosecution or which could be relied upon by those who come before the courts to try to avoid being brought to justice.

It is worth saying there are some in our community who have engaged in criminality of a kind in respect of which the time has certainly come, if not passed, in which they should exchange the cufflinks for handcuffs. There is a great deal of frustration inside and outside this House over the time it takes to investigate white collar crime. This Bill is designed to facilitate those investigations and to ensure that maximum co-operation is available to An Garda Síochána in the provision of information and documentation and with regard to the obtaining of preliminary court orders so as to advance the speed of investigations and render it more difficult for others to obstruct them.

It is my hope and expectation that this Bill will be of significant value in the investigation and prosecution of future white collar crime and that it will be of assistance with regard to current investigations. The Government, however, will not sit back and simply tick off white collar crime from its agenda once the Bill is enacted. It will continue to examine how the law can be made more effective to ensure white collar criminals cannot act with impunity. In that respect, it will keep the provisions of the Bill under continual review.

Let me turn to comments made by some Deputies. I hope those to whom I will not refer will forgive me if I do not deal in detail with each speech we heard in this House on the Bill. I want to lay down an additional marker by saying the contributions made by each Deputy, on every side of the House, have been listened to carefully and will be scrutinised carefully prior to the commencement of Committee Stage. In so far as there are good ideas coming forward that may improve the Bill, we are open to listening to them and taking them on board. I look forward to constructive exchanges in this regard on Committee Stage. I hope during the course of my response, which will be brief and conclude at 7 p.m., at which time I hope we will conclude Second Stage, to address some of the concerns and issues that have been raised.

Let me address specific points raised by Deputy Calleary. He asked that the various regulations to be made under the Bill be available for scrutiny by the House during its passage. That is not normal in this House and has not occurred in the past with regard to criminal law legislation, save in very exceptional circumstances. My priority is to have the Bill enacted as soon as possible. I do not want to delay its passage to await the drafting of regulations. Nevertheless, I assure the House that work is commencing on the regulations that will be required to bring the Bill into operation. I do not want any Member to believe that, by commencing that work, we are taking anything for granted with regard to the various Stages through which the Bill must pass, but it is wise that the process commence. The last thing I want is for many months to go by after the Bill's enactment before it becomes operative.

Should any of the regulations we are working on become available during the passage of the Bill through the House, I will make them available, but I cannot guarantee it will be possible. Some of the regulations will be quite technical - for example, those relating to the giving of written notice to a person whose detention is being suspended.

Deputy Calleary expressed concern that my proposals in regard to the right of detained persons to have access to legal advice would not be used to delay questioning and frustrate the efforts of An Garda Síochána to obtain information. I share the Deputy's concern and that is why my proposal to specify in legislation that the questioning of detained persons is, as a rule, to be delayed until such time as the person has had an opportunity to consult a solicitor is accompanied by a stop-the-clock provision and a regulation-making power. The stop-the-clock provision and the procedural steps to be set out in the regulations to assist the Garda in facilitating what is an important constitutional and European Court of Human Rights right, and to do so in a speedy manner, are intended to work together to ensure the purpose of the detention cannot be frustrated and the investigation of the offence concerned hindered in any way.

Deputy O'Brien queried the provision in the proposed new section 5B contained in paragraph (a) of section 9, which deals with access to legal advice and which provides that a failure on the part of a member of the Garda Síochána to observe any provision of the regulations shall not of itself, and I stress those words, affect the lawfulness of the custody of the detained person or the admissibility of any statement made by him or her. This is a standard provision. There are numerous examples on the Statute Book, not least in section 7 of the Criminal Justice Act 1984, the Act in which section 5B is proposed for insertion.

The purpose of the provision is simply to ensure that a technical breach of a regulation by a member, for example, not completing a form properly, does not automatically render the detention unlawful and any statements made inadmissible as evidence. It leaves the matter to the discretion of the trial judge to determine whether the nature of the breach is of such magnitude that it constitutes a breach of the detained person's constitutional right of access to legal advice and should therefore be excluded as evidence.

It is desirable there is full adherence by members to any regulations. Subsection (5) of section 5B conveys this message. It provides that any failure on the part of a member to observe any provision of the regulations shall render that member liable to disciplinary proceedings.

In the context of other issues raised with me, I reiterate what has been said previously. Both the Garda Síochána and the Office of the Director of Corporate Enforcement have confirmed that they have the resources they require for the investigations currently taking place. One of the first things I did on my first day in the Department of Justice and Equality was to raise that issue as a query and arrange for officials of my Department to meet with the Garda Síochána and the Director of the Office of Corporate Enforcement to ascertain whether any additional resources of any nature were being sought from us with regard to the work being undertaken. In so far as there were additional resources required, I understand they were provided and we have reiterated that if any additional resources are needed, they will be provided. Interestingly, over the weekend the Director of Public Prosecutions indicated that as far as he was concerned his office had whatever resources he needs.

It is my understanding that the investigations that are taking place have made substantial progress but while the Government does not have a role in prosecuting offences, we will take all appropriate action open to us to ensure the investigations are brought to a conclusion as quickly as possible.

In the context of the queries raised relating to whistleblower legislation a number of Deputies expressed concern about that. There is an absolute commitment in the programme for Government to introduce a new whistleblowers' Bill. In so far as it has been suggested there may be need for some additional whistleblower measure in this particular legislation, I am having that matter examined. I cannot make a commitment that would include it in this legislation because it is envisaged in Government that there will be a separate and substantial whistleblowers Bill but I do not want this legislation delayed pending the enactment of that Bill. It may be possible to incorporate some discreet provision relating to the issue of whistleblowers in the context of us dealing with Committee Stage. If that proves possible, I will bring forward an appropriate amendment.

Reference has been made to various speeches. There have been two different conferences. A lawyers' conference was organised in recent weeks to deal with the issue of white collar crime. I spoke at one of those conferences, and indeed opened one, and made a presentation to it slightly in advance of the publication of this Bill giving a general outline of the areas we were addressing. There was a headline in one of the following day's newspapers which stated that someone else who spoke at the conference had said there was no need for additional law reform. In fact, the newspaper got it wrong. What was said at the conference by the particular speaker, and it has been repeated in the House, is that we have very substantial laws in regard to white collar crime but in terms of the context of the substance of the laws, what we need to do is apply them and implement them.

At that conference there were calls for the type of legislation I have introduced in this House. A number of people have said there is a need for a change in the procedural approach to white collar crime within the courts structure and a need to provide additional assistance to the Garda Síochána. Essentially, the provisions contained in this Bill reflect what has been called for with regard to the reforms that are necessary. It is important to differentiate between the substantive law in place and the new law that will be enacted following the passage of this Bill, which will greatly facilitate the investigations of white collar crime.

Deputy Ross made a number of points. I agree with him on one point. We have very substantial laws with regard to insider dealing in the stock market. It is not for me as Minister for Justice and Equality to pronounce whether an individual or any individuals have been guilty of insider dealing. It would be highly inappropriate for me to do so but the laws are in place. The expertise exists within the Garda Síochána to investigate matters should there be a belief that people have behaved in a manner which warrants a criminal investigation. If that investigation does occur, there should be no doubt but that the provisions in this Bill would also be of substantial assistance in gaining access to information, be it held in documentary or electronic form.

I thank Deputy Ross and the other Independent Deputies who contributed in such a positive way to this debate and who raised issues which were important to discuss. I was surprised by Deputy Ross's suggestion that those who may be found guilty of white collar crime should be sentenced to community service, and he called for some change in the law. The reality is the community service legislation applies across the board to people who commit all sorts of crimes, be they white collar or not. I would share the view expressed by Deputy Maloney that in the context of the seriousness of the nature of the crimes in the white collar area and in so far as they have had a substantial impact on the economic well-being of this country, the economic circumstances of individuals or contributed to the 440,000 unemployed, I personally would not regard community service as an adequate penalty for the sentencing of those guilty of serious white collar crime.

I come back to from where I started. With regard to those found through our courts guilty of serious white collar crime, rather than doing community service they should exchange the cufflinks for handcuffs. There is a sentencing system. Ultimately, it is for the courts to determine how they apply sentences but there is a need to ensure that the punishment fits the crime. White collar crime, as we know, can have devastating impacts and I was surprised that Deputy Ross, who has been waxing lyrical for a while about the banks despite the fact that he was something of a cheerleader for Mr. Seanie FitzPatrick and Mr. Fingleton during the early 2000's and despite the fact that he was urging the other banks to follow their banking practices which, tragically for all of us, they did, should now suggest that if someone is prosecuted arising out of the banking scandals it would be a good idea that they do community service. Some of the people he has been so vocal criticising would, if they found themselves before the courts and convicted, be very happy to only have to do community service.

I will conclude by thanking again everyone who spoke in the debate. It is correct that in particular I express my thanks for the support I received from my own colleagues in Fine Gael and in the Labour Party. I thank everyone on the other side of the House also. I would hope that we will be able to commence Committee Stage of this Bill rapidly at the justice and defence committee upon the committees being formed and our being in a position to proceed.

Question put and agreed to.

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