Seanad debates

Wednesday, 16 May 2018

Criminal Justice (Corruption Offences) Bill 2017: Committee Stage


10:30 am

Photo of Victor BoyhanVictor Boyhan (Independent) | Oireachtas source

I move amendment No. 2:

In page 18, lines 16 to 22, to delete all words from and including “other” in line 16 down to and including line 22.

I noted Senator Leyden's intervention stating that Fianna Fáil will be supporting the Bill. I am supporting the Bill. I am reminded of what the Taoiseach said in his only address to this House. He spoke of our role and that he wished to see more legislation. We are redundant if we do not deal with this. There is very little legislation coming through this House at the moment - that unfortunately is the way the pipeline is. The Taoiseach appealed to us to actively and rigorously pursue and scrutinise legislation. That is the primary function of this House.

Senator Leyden has now left the Chamber, having made his statement that Fianna Fáil is supporting the Bill but would not be supporting the amendment or amendments - I could not quite understand. He has not heard us speak. In a democracy I like to hear what people have to say before I make a call on something. I have spoken to Fianna Fáil people myself. While it might not have been dealt with in the Dáil, not everything happens in the Dáil. The Minister, Deputy Flanagan, made that point about the previous amendment. There are some enlightened people in here who have a different view on things. We saw it differently.

I am not ruling out Fianna Fáil supporting the next one based on my engagement and conversation. I took the trouble to send this to Deputy Micheál Martin this morning before I left here. I am sorry I did not send it earlier. Perhaps I should have used some more of my lobbying skills to meet him and some other officials within the party earlier. Anyway, I will make my case here and try to convince people. Politicians cannot be above the law. It is that simple. I discussed this issue after the last time this Bill was debated in this House. I thought about it and sought advice. We need to be very clear. I am interested to hear what the Minister, Deputy Flanagan, has to say. He did say that he would reflect on it and he may read something into the record today that I would be interested to study. The amendment I have moved pertains to section 17(4). I will read it out for clarity. It proposes, on page 18, between lines 16 and 22, to delete the following:

other than an office as—

(i) a member of Dáil Éireann,

(ii) a member of Seanad Éireann,

(iii) a member of the European Parliament who is such a member by virtue of the European Parliament Elections Act 1997, or

(iv) a member of a local authority.

I appreciate there may be divided views in this House and there may even be divided constitutional and legal views and opinions. It is important, however, that this matter is debated. As the Bill stands, there is a provision for a court - after a person has been convicted on indictment and in addition to any custodial or any non-custodial sentence issued - "to make an order prohibiting the person from seeking to hold or occupy any office, position or employment as an Irish official". An "Irish official" is defined in section 2 of the Bill as including:

(d) the Attorney General,

(e) the Comptroller and Auditor General,

(f) the Director of Public Prosecutions,

(g) a judge of a court in the State,

(h) an arbitrator, including any member of an arbitral board, panel or tribunal, in arbitral proceedings governed by the law of the State,

(i) a member of a jury in court proceedings (whether civil or criminal) in the State or in an inquest held under the Coroners Act 1962,

(j) an officer, director, employee or member of an Irish public body (including a member of a local authority),

(k) any other office holder appointed under an enactment who is remunerated out of moneys provided by the Oireachtas and who is independent in the performance of the functions of that office, or

(l) any other person employed by or acting for or on behalf of the public administration of the State.

In Schedule 1 to the Bill, there is an exhaustive list of who is included in the definition of "an Irish public body". It includes:

(a) a Department of State, including, as respects any particular Department of State, any office or body not otherwise standing specified in or under this Schedule in relation to which functions are vested in the Minister of the Government having charge of that Department of State;

(b) the Office of the President;

(c) the Office of the Tánaiste;

(d) the Office of the Attorney General;

(e) the Office of the Comptroller and Auditor General;

(f) the Office of the Director of Public Prosecutions;

(g) the Office of the Ombudsman;

(h) the Houses of the Oireachtas Service;

(i) the Courts Service;

(j) a local authority;

(k) the Health Service Executive;

(l) the Garda Síochána;

(m) the Garda Síochána Inspectorate;

(n) the Garda Síochána Ombudsman Commission;

(o) the Policing Authority;

(p) the Criminal Assets Bureau;

(q) the National Asset Management Agency;

(r) the Broadcasting Authority of Ireland;

(s) the Irish Human Rights and Equality Commission;

(t) an Bord Pleanála;

(u) the Office of the Director of Corporate Enforcement.

I want to be specific in reading this. It is important that we set the record right here and that we do not have any distortion or misunderstanding when we leave here and suddenly ask what are we talking about. There are only three amendments and as there is time for this business, I do not see why we should not be specific and set out our case. The Schedule continues by listing:

(v) a body, organisation or group established---(i) by or under any enactment (other than the Companies Act 2014), or

(ii) under the Companies Act 2014, in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government;(w) a company a majority of the shares in which are held by or on behalf of a Minister of the Government;

(x) any other body, organisation or group appointed by the Government or a Minister of the Government.

Under section 17(5)(a), all these people, the categories of whom are vast in nature, if convicted of an offence could be prevented from retaining their position or any other position in any of the above bodies or public bodies:

if the court is satisfied that to do so is—

(i) in the interests of justice, and

(ii) in the interests of maintaining or restoring public confidence in the public administration of the State.

It is important that these full provisions be read into the record because, crucially, under section 17(4)(c), the persons it does not include are:

(i) a member of Dáil Éireann,

(ii) a member of Seanad Éireann,

(iii) a member of the European Parliament who is such a member by virtue of the European Parliament Elections Act 1997, or

(iv) a member of a local authority.

How can we say that every person is treated equally under the law if, under the broad definition I have outlined today, effectively a secretary who is convicted for a corrupt offence could see him or herself prevented for up to ten years for working in any public office. A politician, however, convicted for that same offence could put himself or herself up for election. I have heard the arguments about constitutional conflict and around the Constitution. The public do not always know what politicians are about. I do not think we can put it down to there being constitutional issues in respect of this issue. If there are, I want to hear them and I want to hear them here today.

If the Minister is constrained by the advice from the Attorney General - as he may say to us, I do not know, and I will not pre-empt what he might say - then I would like to hear what the constitutional constraints are. Equally, if it is the Attorney General's advice that including elected persons within the definition of the public official is unconstitutional, then I think we should at least have a discussion about amending the Constitution. I await the Minister's response and I thank the Members for indulging me in that rather long introduction. However, it was important to put it right for the record of the House.


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