Thursday, 16 December 2021
Proceeds of Crime (Gross Human Rights Abuses) Bill 2020: Second Stage [Private Members]
I move: “That the Bill be now read a Second Time.”
I am grateful for your presence here, Acting Chairman, and for the presence of the Minister of State, Deputy Browne. I am very conscious that this is the last item of business in a very busy schedule, a unique schedule in many ways. It is important that individual Members still have the right to bring forward legislation and it is with great pride that I present a Bill that enjoyed cross-party support when I introduced it on First Stage. I believe it is an important part of progressive criminal law in this country.
Members will recognise the Bill as so-called Magnitsky legislation. Since 2012, a growing number of countries every year have passed laws providing for financial sanctions against the officials of other states who have committed gross human rights abuses or who have been involved in significant corruption. These laws collectively are referred to as Magnitsky Law, named after Sergei Magnitsky, an accountant who made serious accusations against tax officials in the Russian Federation and against law enforcement officials in Russia.
Of course, he was then arrested, jailed, allegedly beaten and he died in prison. In 2012, the United States Congress passed the Magnitsky Act, which imposed sanctions on officials involved in this case. Laws on similar lines have subsequently been passed in a number of states across the globe. As I said, Magnitsky legislation refers to laws providing for governmental sanctions against foreign individuals who have committed human rights abuses or have been involved in significant corruption. They originated in the United States following the death of Sergei Magnitsky and have now generated mirroring legislation in countries like the United States and Canada, the European Union itself, including Estonia, Lithuania and Latvia, Gibraltar, Jersey, Kosovo and the United Kingdom, and there is legislation pending on this in Australia, Moldova and Ukraine. Magnitsky was a tax accountant who accused Russian tax officials and law enforcement of stealing $230 million in tax rebates from Hermitage Capital Management. Needless to say, his accusations were not investigated but he was arrested, accused and ended up dead in jail.
The original Magnitsky Act in the United States, which was enacted in 2012, was expanded in 2016 into a more general law authorising the US Government to sanction those found to be human rights offenders or those involved in significant corruption, and allowed the authorities in the United States to freeze their assets and, indeed, after the 2016 legislation, to ban such persons from entering the United States. In October 2017, Canada passed its own Magnitsky legislation, known as the Justice for Victims of Corrupt Foreign Officials Act, which the Parliament of Canada passed in 2015. That Act enables targeted measures against foreign nationals who, according to the Governing Council in Canada, among other things are responsible for, or complicit in, gross violations of human rights, or who are public officials or associates of public officials who are responsible for, or complicit in, such significant corruption.
There are a number of different Acts that I can reference, although I will not go into detail in the few minutes that I have. They are not all identical and they do different things, but all are grounded on the same principle, that is, where there are gross violations of human rights abroad committed by officials of a state or agents of a state, we in a democratic country have the right to take action if they have assets in this State and thereby present, hopefully, a global network to be a chilling factor against those who would perpetrate acts of abuse of human rights.
In this State, as the Minister of State will know, powers are available under the Proceeds of Crime Acts 1996 to 2016 to seize and dispose of assets against corrupt foreign officials who have assets within our jurisdiction. However, the difficulty with the 1996 Act is that for it to apply, a dual criminality test would need to be satisfied. That means the conduct giving rise to the acquisition of those assets must be such that it would constitute an offence both under Irish law and under the law of the foreign state. The purpose of the Bill I am introducing, and that we are now debating on Second Stage, is to make our Proceeds of Crime Acts more easily available to our authorities to deal with cases where there are human rights abuses abroad. This Bill provides that certain conduct occurring outside our State is described as “criminal conduct” for the purposes of our own Proceeds of Crime Acts, notwithstanding that it does not constitute an offence under the law of the foreign state concerned. As we can imagine, there are many countries where those particular actions of corrupt officials are not prosecutable there because they are not an offence there, but they would be seen as an absolute offence here. We need to have the authority to move against them if they seek to deposit their assets in this jurisdiction.
It applies under this provision if the conduct as constituted is connected with a gross abuse of human rights. Conduct is stated to constitute a gross human rights abuse if it is carried out by or at the instigation of, or with the consent or acquiescence of, public officials or a public official of the national or regional government or public administration of a named foreign state, or an official in the performance or purported performance of official duties, or if it involves the intentional infliction of severe physical or mental pain or suffering, or other cruel, inhuman or degrading treatment or punishment of a person who has sought to expose illegal activity carried out by an official to obtain, exercise, defend or promote human rights and fundamental freedoms. That latter point is of extreme importance. It is so often the case that we see internationally that it is the whistleblower, the person who wants to shine a light on gross human rights abuses, who is the person who is actually brought to book and, in the most extreme cases, as in the case of Sergei Magnitsky, suffers the awful situation of being beaten and dying in prison.
It is a short Bill with two sections. The first section sets out the meaning of “criminal conduct”. Section 1 states:
(1) Section 1 of the Proceeds of Crime Act 1996 is amended by the insertion of the following subsection after subsection (1A):
“(1B) (a) Conduct which occurs outside the State and which would constitute an offence or more than one offence if it occurred within the State is criminal conduct, notwithstanding that it does not constitute an offence under the law of the state or territory concerned, if- (i) it constitutes, or is connected with, a gross human rights abuse, and
(ii) at the time when an application is made for an interim order or interlocutory order, property obtained or received at any time (whether before or after the passing of this Act or the Proceeds of Crime (Gross Human Rights Abuses) Act 2020) by or as a result of or in connection with the conduct is situated within the State.
That gives the authority to our Criminal Assets Bureau and our State agents to seize such property where gross human rights abuses are involved.
Section 1 continues:
(b) Conduct constitutes a gross human rights abuse if- (i) it is carried out by, or at the instigation or with the consent or acquiescence of, a public official, being a [named] person employed by, or acting on behalf or under the direct or indirect control of, the national, regional or local government or public administration of a state other than the State (including of any territory for whose external relations a state other than the State or its government is wholly or partly responsible), in the performance or purported performance of official duties...
The third paragraph of section 1 describes the conduct. It states:
(c) Conduct is connected with a gross human rights abuse if it involves- (i) acting as an agent for another in connection with a gross human rights abuse,
(ii) directing or sponsoring such an activity,
(iii) profiting from such an activity, or
(iv) providing material assistance in support of or in connection with the carrying out of such an activity, including by providing goods or services or financial or technological assistance.”.
Paragraph (iii) is an important point in that profiting from human rights abuses would also be captured by this enactment.
Subsection (2) states: “The amendment effected by subsection (1) applies in relation to conduct, and in relation to property obtained through such conduct, whether the conduct occurs or the property is obtained before or after the passing of this Act." Again, it is an important point that even if somebody has property here in advance of the enactment of this legislation and is carrying out human rights abuses now, that would be captured by this legislation.
We are living in a changing world. Human rights abuses are being brought to our attention all the time and too often human rights defenders are under attack. A veil of secrecy has been drawn across gross violations of human rights in many parts of the world. Those with the courage, tenacity and bravery to try to expose that awful abuse are often cruelly imprisoned and abused themselves. There are limited things we can do in such circumstances but as a State we surely must ensure that where such abuse occurs those perpetrating that abuse cannot stash their ill-gotten gains in our jurisdiction. We have a growing international financial service with many billions of euro flowing through Dublin and this State all the time. We need to have the capacity to know that this money is clean in all circumstances and where we have prima facieevidence we need to have the legal wherewithal to be able to act against perpetrators who want to use our jurisdiction as a safe haven for their ill-gotten gains.
I look forward to this Bill passing Second Stage and hopefully progressing into law so that Ireland can join a growing group of countries, starting in 2012 in the United States with the Magnitsky Act. We have been exhorted by the European Parliament and the European high level international spokesperson to enact this legislation. I hope the Minister of State will embrace this and ensure the Government gives its weight to bringing it into law so that we can join that growing band of progressive nations. I thank the Ceann Comhairle for his present.