Seanad debates

Wednesday, 16 May 2018

Criminal Justice (Corruption Offences) Bill 2017: Committee Stage


10:30 am

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael) | Oireachtas source

I thank Senators Boyhan and Norris for coming back to this issue, which was referred to at an earlier Stage. The amendment relates to the provision in section 17(4)(c) where a court in imposing a sentence on a person for an offence under the Act may make an order which will in essence prohibit that person from seeking to hold or occupy any office, position or employment as an Irish official for up to ten years.

I agree with much of what has been said. It is entirely reasonable to seek to exclude from public office somebody found guilty of corruption. The United Nations Convention against Corruption requires Ireland to give due consideration to such a measure. The penalty may be imposed where a court is satisfied as to a number of things. It is in the interests of justice and in the interests of restoring public confidence in the public administration of the State. However, it is the court that must be satisfied.

The Bill as it stands contains a number of exceptions. It states that nobody should be prohibited from seeking office as a Deputy, Senator, Member of the European Parliament or member of a local authority. I understand Senators Boyhan and Norris would like to remove these exceptions. There are sound constitutional reasons for having these exceptions. I refer to Article 16.1 of the Constitution which states:

Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.

Seanad Éireann is dealt with in Article 18.2 which states:

A person to be eligible for membership of Seanad Éireann must be eligible to become a member of Dáil Éireann.

There is a direct relationship and consequence.

I thank Senator Norris for going back to the earlier debate because it is important in considering where we are here. I admit there was an element of confusion during the Second Stage debate, as Senator Norris acknowledges. There was some confusion that the exceptions may only apply to politicians. I want to be absolutely clear about the penalties under the Bill. Included in the penalties are imprisonment; fines; and forfeiting the gift, advantage or consideration. This, of course, applies to all citizens and all residents, including politicians. Where the penalty is forfeiture of office, this can only apply to State employees, some of whom have been mentioned by Senator Boyhan - civil servants, public servants and elected politicians. However, it will not apply to a small number of particular posts listed in the Bill as relevant Irish officials. I will address this when discussing the next amendment, where it may be more relevant.

Where the penalty is prohibition from seeking public office for up to ten years, this again can apply to all Irish citizens and residents, including politicians. Anybody with a corruption conviction can be prohibited from seeking employment as a public servant or civil servant, or from seeking a particular public post for a period of up to ten years. The exception here is that nobody can be stopped from standing for election as a Deputy, Senator, MEP or member of a local authority. It is not my intention here to unduly interfere with the electoral process.

I have been strongly advised that putting a prohibition order on somebody from seeking election would raise constitutional issues. When the public are voting and a particular candidate has a conviction for corruption, this will obviously be a matter of public record. The voter will make a choice on the basis of that record. I do not accept that a serious corruption offence contrary to this legislation would be secret or would be conducted in a way that the electorate in any constituency - Dáil or Seanad - would not be aware of this. It would be a matter of public record and I have no doubt that the issue would be very much in play in an election campaign for the Dáil, Seanad, European Parliament or whatever.

Where the penalty is forfeiture of office, it can and does apply to elected politicians - Deputies, Members of the European Parliament, members of a local authority and Senators. The difficulty arises at the following or subsequent election at which that person may wish to seek an electoral mandate. That is where the issue of the Constitution comes into play.


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