Wednesday, 3 February 2021
Criminal Justice (Theft and Fraud Offences) (Amendment) Bill 2020 [Seanad]: Second Stage (Resumed)
I am sharing time with Deputy Connolly. The purpose of this Bill is to transpose EU Directive No. 2017/137, also known as the PIF directive. It will amend the 1994 and 2011 Criminal Justice Acts, the Criminal Justice (Theft and Fraud Offences) Act 2001 and other enactments. In his opening speech last week the Minister of State, Deputy James Browne, told us that the European Commission has been on to Ireland already with a "reasoned opinion" because the transposition is overdue. The Minister of State said, "This reasoned opinion is the final step before Ireland can be referred to the European Court of Justice, ECJ, where a fine will be imposed." Is it not amazing that the Dáil’s work schedule is being dictated by the threat of fines?
The PIF directive was issued on 5 July 2017 and some of its elements were already transposed into Irish legislation by way of the Criminal Justice (Corruption Offences) Act 2018. The directive’s aim is to strengthen the systems for fighting crime affecting the EU budget, fraud, and other offences against the financial interests of the EU. The deadline for transposition of the PIF directive was 6 July 2019. The Bill before us today belatedly deals with the outstanding matters mentioned and also provides for the creation of a new offence of misappropriation.
As usual, the Oireachtas Library and Research Service produced a very useful Bill digest. The section on the policy background highlights that there are varying estimates of the cost or damage of fraud to the EU’s budget annually. The European Anti-Fraud Office, OLAF, gives estimates of more than €500 million whereas there have been far higher estimates of up to €5 billion, including €1 billion in VAT fraud.
The PIF directive also provides for the new European Public Prosecutor's Office, EPPO. Under protocol 21, Ireland has opted out of participating in the EPPO for the time being. In January 2020, there was a regulatory impact analysis, RIA, on this Bill and two policy options were considered. One of the options was to introduce legislation and the other was, hilariously, to do nothing. The Bill digest states, "The RIA notes that the potential impact of doing nothing would include, 'costs to the State from the possible imposition of fines and potential reputation damage.'" The option to do nothing was only being considered six months after the deadline for transposition. We are already being fined for our tardiness regarding this EU directive, so the option of doing nothing is actually costing us money. How many times has the Cabinet sat around and said one of its options is do to nothing? I would say it happens quite often by the looks of things.
I often wonder what the Government is doing at all. There has been indecision around Covid-19 measures and roadmaps for reopening but no consideration of the preferred zero Covid approach and a full campaign around survivors accessing their testimonies to the Commission of Investigation into Mother and Baby Homes without the Government telling any of us, or the survivors, that the recorded testimonies had been deleted. Years of Brexit negotiations and aspects of negotiations around fisheries do not seem to have been considered at all. It was up to the fishermen themselves to campaign and raise awareness. Why is it always up to the affected groups and sectors to raise the Government's consciousness on important matters? Why is it always the many fighting for their rights, their livelihoods and their safety? Why is the Government squandering much needed Exchequer funds paying EU fines? Surely the Minister of State would agree there are services and projects to serve the people that would be a much better use of that money. It seems the EU is the only one that is responded to in time as well.
Is iontach an rud é go bhfuil 20 nóiméad againn don Bhille seo. Tá sé ráite ag an Rialtas gur rud teicniúil é agus in ainneoin sin tá 20 nóiméad ann. Níos luaithe inniu bhí dhá nóiméad agam maidir le hábhar thar a bheith tábhachtach agus ní rud teicniúil a bhí ansin, sé sin, cumhachtaí an tOmbudsman do Leanaí. Glacaim leis an am go fonnmhar.
It is ironic that our group has 20 minutes to speak on a Bill that is described as technical and had five minutes for the motion on the Ombudsman for Children earlier, on which I would like to have expanded. I would have given my left arm for ten minutes on the Ombudsman's report or tomorrow's debate on mental illness. It is not the Minister of State's fault but it is interesting to put it in context. We have a full 20 minutes on a Bill that he has described as technical. I thank him for his written speech and the background to it. I also thank the Library and Research Service and gabhaim buíochas do Rannóg an Aistriúcháin as an ngluais a thug siad dúinn ionas go mbeadh muid in ann cúpla focal a rá trí Ghaeilge. Seo rud nua agus ba mhaith liom aitheantas a thabhairt don aistriúchán. Is éilliú gníomhach agus cionta éagsúla atáimid ag caint faoi anseo.
What can we do but welcome the Bill? I absolutely welcome a Bill that deals with corruption and fraud and creates new offences but, as my colleague said, this should have been done a long time ago. In fact, today is D-day, the day by which the Government was to reply to the Commission, so it is doubly ironic that we are here today. This should have been done before last July. The Bill digest makes for difficult reading. There was a "do nothing" scenario or one where we do something and doing nothing means we get a bad reputation and have to pay many fines. It raises the question of how we ended up having so much time, in the middle of a pandemic, to discuss a Bill that is technical and that should have gone through the Dáil nearly a year ago. How could that happen when this time should be used for the pandemic emergency? There are so many topics on which we would like to speak, to keep the Government on its toes and to make life easier for everybody, and here we are discussing a technical Bill. I acknowledge the work that went into it but it was belated and too late.
The Bill includes an expanded definition of fraud and a new offence of misappropriation. There is also provision for the liability arising from the offences of a corporate body. That is to be welcomed, although I am not sure how extensive it is. It will have to be monitored carefully. It also defines the scope of the European Public Prosecutor's Office, of which we are not a part. I do not know if the Minister of State will get a chance to speak on this again but I ask him to clarify the nature of our co-operation with that office. We did not opt into that section, and rightly so because we have a completely different legal system and it provides for an extension of European law into criminal law which is new and is a creeping jurisdiction. We have to be very careful. The directive allows for a European public prosecutor. How are we going to co-operate with that? What is the nature of our co-operation? Who will monitor the supra-national aspect? The prosecutor will be able to take action now in each country. I do not know whether it is good or bad, but I have concerns about the nature of our co-operation on something like that.
The extent of the fraud and corruption involved is anybody's guess. The Library and Research Service tells us there are two estimates, from the Commission's own estimate of €404 million to the House of Lords', which is €5 billion. We were very grateful to the House of Lords lately for its attitude to certain aspects of Brexit and we should be grateful to it again as it is telling us that its estimate is at the very least €5 billion and that that is only the tip of the iceberg. That is interesting in itself.
I will move on to the report by the Department of Justice's review group on corruption in Ireland. It would be nice to know when we are going to have a discussion on that. Perhaps the Minister of State could come back with a clarification on why this directive was not transposed in time. Are we facing any fines and what is the extent of our co-operation with this office that transcends and crosses borders?
The Department of Justice published a review group report on structures and strategies to prevent, investigate and penalise economic crime and corruption. We are talking about Ireland here. It is a very interesting report. There are about 122 pages if one leaves out the appendices. The foreword is very interesting because it is written by James Hamilton, the former Director of Public Prosecutions. It is dated 9 November 2020. It states, "The Review Group was established as part of a package of measures to enhance Ireland’s ability to combat economic crime." It uses the term "economic crime" in order to have a broader view of crime and corruption which would include social welfare. To me, social welfare is way down as regards crimes but the term "economic crime" includes it. The foreword further states, "The Report identifies a number of strengths and weaknesses in the existing structures for dealing with economic crime and corruption [in Ireland]".
We are putting through legislation to deal with corruption related to the use or misuse of funds in regard to VAT returns for Europe, all the while ignoring the review which has been available since last November. I appreciate that there is a pandemic. The review report outlines many weaknesses dating back years in regard to gaps and what should be done in Ireland. On the positive side, it states that the principal agencies charged with the investigation and prosecution of crime function well given the limitations imposed by their resources which in some cases, in particular in the case of the Garda National Economic Crime Bureau, are inadequate to meet existing demands as well as increasing demands which will arise in the future and that we need a more structured and co-ordinated approach. It goes on to say that there has been a continuing failure to legislate for the area of pretrial criminal procedures as recommended by the Fennelly commission report of 2003.
The review report sets out the recommendations, including legislative, structural and resourcing measures needed to enhance agency and multi-agency prevention and enforcement capabilities in the sphere of economic crime. The Minister of State will be aware of the following point, but while I have time I am going to use it. To put it in context, Ireland, a relatively small country with a population approaching 5 million, is the fifth largest provider of wholesale financial services in the EU, with more than 400 international financial institutions located here. According to EUROSTAT figures, Ireland has the fifth largest proportion of workers in the financial services and insurance activity sectors at approximately 95,000, and so on. What is the point being made? The vulnerability of the financial services sector to economic crime and corruption cannot be over-emphasised. I am referring to the foreword of the review report before it gets into the gaps and the recommendations. This report was complete at the time the pandemic struck Ireland. It goes on to speak about the increase in online activities. It needs hardly to be emphasised that all of this increases the opportunities for cyber criminals and the risk of computer crime and so on.
Promises were made to deal with white-collar crime in Ireland but nothing much has happened in relation to it. I am saying that. The purpose of the review is to examine specifically anti-fraud and anti-corruption structures and procedures in the criminal law enforcement. It goes on to make 25 recommendations. It highlights the inadequacies in many areas, including in regard to Standards in Public Office, SIPO, which has a bearing on all of our lives. The review group recommends that the independence and the capacity of SIPO be enhanced by ensuring that resources allocated to the ombudsman under Vote 19 are ring-fenced. The rationale behind this recommendation is that improving resourcing to SIPO will enable it to fulfil its mandate. The review goes on to speak about the gap whereby former Members cannot be investigated, the need for Irish competition to be amended to create a specific offence of bid rigging and the lacuna in the Ethics in Public Office Act 1995. Currently, there are no provisions for examining possible contraventions of the ethics Act by ex-Members of the Oireachtas who are not officeholders.
I do not know if the Minister of State has read the review report. I do not expect Ministers and Ministers of State to have read everything. I am working my way through the review report. No more than the mother and baby home report of 3,000 pages, it is a work in progress. It is ironic that we are here putting through this legislation while, as I said earlier, we have this report. I have three minutes remaining which I am prepared to give to the Minister of State if there is not provision for him to come back in later in order that he can tell me if the Department has looked at the review and what is being done in relation to the recommendations that are so urgent, some of which have been around for a long time. I have mentioned the legislation of 2003 and SIPO. In between, there is a variety of recommendations that could be implemented very quickly if we were seriously interested in tackling corruption and fraud in Ireland and in Europe but very often we resort to the lowest hanging fruit as in the case of social welfare.
I welcome this Bill. I disagree with white-collar crime but I do not believe this legislation will make any difference. Ten years ago, the Government bailed out the banks at a cost of €64 billion. According to the Comptroller and Auditor General, this continues to cost us €3 million per week. To put this in context, the pandemic unemployment payment, which the Government has continuously tried to cut on the basis that we cannot afford it, has cost us €5 billion. I believe that if there was another banking crisis tomorrow and we had available to us the evidence we had in regard to what happened in the first crisis those involved would again get off scot-free and nobody would be prosecuted. In January, a mother in Cork who was caught shoplifting was sentenced to four months in prison while others such as bankers, developers and speculators scammed this State out of a fortune and robbed the future of many of us, our children and future generations and got away scot-free. It is beyond belief.
Nothing has changed. Since this Government came to power it has been plagued by scandal after scandal. Developers and big business are still top priority for Fianna Fáil and Fine Gael. There is not a Deputy in this Chamber who does not know what happened when the banks had the ear of Government. Every day, I speak to people who have been harmed. Yet again, it appears developers have the ear of the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien. He is proceeding with a shared equity scheme despite his departmental officials telling him that the only people who will benefit from it are developers. Has this Government learned nothing down through the years?
We are one year on from a momentous election in which people came out in their droves to vote for change. They wanted change and they voted for it. They voted for an end to parties that the rich and powerful can influence. They voted to end the bank bail-outs and developer hand-outs. What we have seen in the last 12 months, shows Fianna Fáil and Fine Gael will never change. There needs to be real opposition to hold them to account. The money wasted and exposed almost weekly is a scandal. This is not change. It is more of the same. Fianna Fáil and Fine Gael have never held each other to account. Sinn Féin will not let them away with that. We will hold the Government parties to account.
I share the frustrations of Deputy Connolly in regard to the allocation of speaking time. Earlier today I wanted to raise a serious issue with the Taoiseach. On five occasions I have asked the Taoiseach in this House about the closure of SouthDoc in Blackpool in Cork. This evening, we are discussing fraud and crime. SouthDoc is paid €7.3 million per annum to provide an out-of-hours GP service for the people of Cork North Central and Kerry. It has not provided that service since last March. I have asked the Taoiseach, the Minister for Health, Deputy Donnelly, the Department of Health, the HSE and SouthDoc why when we are paying €7.3 million for a service the people of Cork North Central are not getting that service.
This is happening during the time of a pandemic. A number of weeks ago, a man had to walk from Farranree, on one side of Cork city, out to the SouthDoc facility on Kinsale Road because he did not have the money for a taxi and he was too afraid to get a bus because of the number of people testing positive for Covid at the time. That is some distance. I spoke to a woman with a disabled son and two other children who had to leave her home in Blarney, drive past the SouthDoc building in Blackpool, which should be open but is closed, and out to the SouthDoc premises on Kinsale Road. She had to wait there for 40 minutes with her children because her husband was at work. This debate is about fraud and white-collar crime. What the SouthDoc service is doing in Cork is wrong and it is in breach of its service level agreement. Something needs to be done about it.
As I said, this debate is about crime and particular technicalities, but I have outlined the real facts about what is happening for people in this country. I hope they will be dealt with for once and for all. The SouthDoc facility in Blackpool was closed last March. For 11 months, the State has paid for a service that is not available. That is fraud.
I am very glad to have an opportunity to speak in the debate on the Criminal Justice (Theft and Fraud Offences) (Amendment) Bill 2020. I acknowledge that it is a very technical Bill. As with a number of other Bills we have dealt with, it is concerned with updating our infrastructure to deal with international crime and make sure we are following EU directives. That is all absolutely necessary and is to be supported. I agree with the Leas-Cheann Comhairle, when she spoke earlier, that there are jurisdictional questions that need to be dealt with. I would like to see some detail in that regard and in terms of the outworkings. In the generality, however, all of us would be in support of ensuring that we have the infrastructure and the ability to deal with European-wide and international crime, particularly fraud offences and cyber-related crime.
In recent times, particularly during the Covid pandemic, we have all been inundated with text messages, WhatsApp messages and Messenger messages promising us this, that and the other. Most us know - if we do not, it is brought to our attention very quickly by Joe Duffy and others - that such messages are generally come-ons by fraud enterprises. We all must be on the ball all the time in that regard. As much as one sometimes sees these things and laughs at them, one finds that there are people who fall for them. The people who operate the frauds do so on the basis that it is worth their while. Sometimes they put people who are already in fairly precarious scenarios into even worse monetary situations. That level of organised crime needs to be dealt with. Whatever level of infrastructure we require to do it needs to be provided. In that sense, I completely support the legislation.
On the wider issues, I have spoken previously about the need to ensure we have all the tools we need to deal with the times in which we find ourselves in terms of cybersecurity. There are difficulties and questions to be answered as to whether there will be one overall body to deal with this and what the relationship will be between it and the Garda and the Defence Forces. We are talking about an issue that crosses many planes. We have spoken about straightforward crime and the fact that we have a tax on our communications infrastructure. We know that some of these crimes impact on business, whether they are literally fraud or denial of service attacks, which put a business out of operation for a period of time and have an impact monetarily and in terms of how the world perceives that business. These issues are incredibly important. As I said, we need to ensure we have the required specialist capacity and ability, specialist training and specialist personnel. There are questions to be answered as to whether such personnel will have to be seconded to the cybersecurity body or whether there will be a crossover between the Defence Forces and the Garda, especially when we are dealing with issues to do with cybercrime as it relates to national security. I do not always enjoy using the term "national security" but we need to get some level of information in that regard.
In regard to communications infrastructure and the broadband network, people say to me quite often, as I assume is the case with other Deputies, that the lack of broadband provision in certain areas amounts to a crime. In fairness, I welcome the indication by the Tánaiste that he, the Minister for the Environment, Climate and Communications, Deputy Eamon Ryan, and others are engaging with National Broadband Ireland, Eir and other bodies with a view not only to speeding up the roll-out of the national broadband plan but also to improving Internet connectivity in general. I commend the Commission for Communications Regulation, ComReg, in this regard. An issue was brought to me by a company in Deputy Gould's constituency regarding antennas that were useful in being able to provide broadband provision using mobile telephone services. Their use was found technically to be in breach of legislation but through engagement with the communications committee and my interaction with ComReg, the latter has come up with a solution to the matter. That may be beneficial to many people and is to be welcomed. It would be remiss of me not to mention this issue when we are talking about the realities of cybersecurity and ensuring our infrastructure is sound. We all know the difficulties in this regard and that there are wider issues to address. There is talk that a new electoral commission will have to look at particular questions relating to the impact of social media on the outcome of elections. There are the microanalytics and all the various toolsets that we are now aware of and the impact they may already have had on particular referendums and elections. There is a wide body of work to be done in regard to our communications infrastructure, cybercrime and the regulations we need for the new world we have in terms of social media.
As we are talking about crime, I could not let the moment pass without dealing with some of the traditional elements of crime that are still with us. I have talked before about the drugs pandemic. It is one that will be with us when we are beyond this particular and tragic Covid-19 situation. In fairness to the Minister, Deputy McEntee, and the Minister of State, Deputy James Browne, I have welcomed a number of speeches they have made and their commentary on the need to deal with these issues in a holistic sense. A whole-of-government response is required. It must be a cross-departmental effort, involving the Departments of Justice, Health, Education, and Children, Equality, Disability, Integration and Youth. Everybody accepts that. The Minister, Deputy McEntee, facilitated me in having a conversation with Vivian Guerin in regard to the scoping exercise he is carrying out into crime in Drogheda. I also spoke to Mr. Guerin about the need to look at the situation in the entire county of Louth. We know about the interaction of criminal gangs across the board, particularly in Dublin, and the particular scenarios that have arisen in that regard. There is an acceptance that the set of rules, tools or skills that are needed to deal with the drugs pandemic should be capable of operating across the board. We will not be able to separate out particular areas and we need to, for want of a better term, attack everywhere at the same time.
I welcome the plan for a Citizens' Assembly on crime.
We need to set a date, accepting the difficulties with regard to the pandemic at this point. It is vital that we take the conversation outside of politics, this place and Leinster House and put it out to the people. We should look at best practice throughout the world. We need to deal with what we need from a health-led response, combined with the absolute necessity of a police or Garda response to criminal gangs and criminal elements.
I have spoken many times, as have others, about the fact that, across the board, but especially in working class areas, people have to deal consistently and constantly with drug debt intimidation. It has become day-to-day business for certain people and a day-to-day nightmare for a significant number of people. People often come to us or to other people who work in the community about this. They use a drug dealer's first name and say they are going around to a person's place. I do not want to use an actual name because, in fairness, if I were to use one or two names people would know exactly who I am talking about. These people are better known than I am. The person will say to me he is going around to do a deal with X to ensure X does not attack his house or the houses of his son, daughter, grandson or granddaughter. This is what we are dealing with across the board and we need to deal with this in a full-scale way.
I have said this to the Minister previously. I have no difficulty with the person who becomes absolute lead in this. At this point, in my head and on the basis of the conversations I have had with the Minister for Justice, Deputy McEntee, it is her responsibility. Obviously, there is an element that involves the Minister of State, Deputy Feighan, who is responsible as regards drugs. This issue needs to be consistently and constantly brought to Cabinet. Someone has to take the lead in dealing with this issue, even in the middle of the pandemic.
Luckily, we have seen incredible work by An Garda Síochána at local and State level. We have seen significant moves made against criminal gangs, and that is all positive. We know that sometimes it is a drop in the ocean. We all look at court appearances and we are aware of the situation. Senior gardaí say this as well. There is a roundabout scenario where there are addicts who are on the hook for drug debts. They end up going out and possibly burning down someone's house or inflicting or threatening violence for the main drug dealer. The main dealer is not especially concerned since he has a disposable fool to do it, for the want of a better term. That person will end up getting arrested and put back in the system. That is absolutely necessary. In some cases, this occurs for lesser crimes. The problem is that person may want to get services, may need services or may need rehabilitation. The gardaí will tell anyone those services are not in place. I know the chief superintendent in County Louth, Christy Mangan, has said many times that we are going to lose a generation to cocaine. He has been quoted in here and in many newspapers.
We need to give the drugs issue importance and put it front and centre. It needs to be at Cabinet level. As I have said, I welcome what I am hearing in the narrative and in the conversation pieces from the Minister in respect of this. We need to see action and a plan. At this point, we also need a timeline in respect of the citizens' assembly and dealing with the drugs crisis.
There are many other issues, for example, the housing crisis. We also know of many communities where the problem of minor crime can have more of an impact on the lives of people. This arises especially where we are dealing with dysfunctional families and people who need supports because, as a state, we have failed to put in place the supports and have allowed situations to fester. Two things happen. We fail a generation and this impacts on the people who live with these circumstances as well. I am calling for a review in respect of the powers and supports that can be brought into play. The local authority has a part to play but we need to resource services such as the HSE, Tusla and youth justice services that are fit for purpose. In fairness, the Minister has mentioned many times that we need to deal with the grooming of young people into criminal gangs.
Deputy Cahill is unable to attend, but he was down to share time with me.
I have to respond to some of the extraordinary words that were uttered not by the previous Sinn Féin speaker but the one before. The Deputy came in and lectured Fianna Fáil and Fine Gael on their roles in the economic crisis, bank guarantee and bank bailout. There were all sorts of anti-European utterances about our role in the European Union. I wish to outline to the Deputy that when I was a child in primary school, Sinn Féin Deputies were in the Dáil praising the bank guarantee. Multiple Sinn Féin Deputies were in the Dáil Chamber, including Caoimhghín Ó Caoláin, Arthur Morgan - as well as Deputy Pearse Doherty, while he was in the Seanad - giving support to the credit guarantee when it was being outlined and to the early stages of the bail out. The misinformation that was outlined by Deputy Gould when he was in the Chamber some moments ago is extraordinary. I believe he owes the House a more honest account of the role of Sinn Féin.
I will move on now to speak not about constituency issues or anything else but about the matter at hand in the Dáil, which is the Criminal Justice (Theft and Fraud Offences) (Amendment) Bill 2020. The Government is working on significant legislation in terms of our role to protect ourselves from fraud at European level. We should acknowledge the fact that fraud is estimated to cost €500 million worth of European money. Obviously, that is a staggering amount of money and we should do more on a multilateral basis to deal with that. It requires high levels of co-operation from our Government and across all European levels to police this matter. It is an extraordinarily large amount of money that could be put to exceptionally good use in other areas. It could be used to prevent crime, for example, or to help us to upgrade and invest in cybersecurity, as outlined by the previous speaker. That is an exceptionally important point. I believe our ability to protect ourselves from cybercrime is an area where we are exceptionally vulnerable in Ireland.
We are a prominent nation in terms of international finance and banking. We need to look no further than outside the door today in terms of the companies and multinationals that surround us at the Convention Centre. From my engagement with people in these sectors as a member of the Joint Committee on Transport and Communications Networks it is clear that strong views are being put forward by many people in that sector. They are concerned about the ability of the Government to defend the sectors from cyberattacks. Unfortunately, this can be serious in the impact it can have on the public finances and potential theft. We should strengthen our ability to police against that. This has been outlined by multiple Deputies in the House today.
I wish to put this point across to the Minister of State, Deputy Browne, today while he is with us, because I know this matter falls within his Department. It relates to how we police fraud and theft in Ireland. Fraud and theft are obviously issues we have had down through the years. This has been experienced through multiple Governments and we have to do more. I would like to see Ireland rise in the index in terms of our transparency, which is obviously important.
As a new person getting involved in politics, I often sense among the public a great mistrust of public representatives, of what they stand for or of what they are trying to achieve by going into politics. This applies whether it is delivering for constituencies or working on policy issues that affect everyone in the State. This is an area where members of the public want to see us leading from the front. They want to see a more honest and transparent political system. Our ever-growing role within the European Union is obviously becoming more important. It is growing each year in terms of the integration between nations across the European Union. This is timely legislation. It is time we put our shoulders to the wheel and enacted it.