Barry Ward (Fine Gael) | Oireachtas source

I welcome the Minister of State back to the House. Like my colleague, Senator Gallagher, I welcome the Bill. Fine Gael is supporting this legislation which is very important to implement the existing directive relating to these matters. This legislative measure comes at the end of a long path of legislation in this area. Obviously, theft, fraud and dishonesty offences are as old as time. In 2001, Ireland passed an Act which gave effect to other international conventions at that time and replaced the Larceny Act 1916 and many of the outdated provisions in that Act. The 2001 Act was the standard bearer in respect of dishonesty offences and has been for almost 20 years, but this is the tenth iteration of amendments to that legislation so it has had to be updated as the nature of crime in this area has changed and become particularly advanced. I refer, in particular, to the cybercrime and corruption offences that are targeted by this amendment to Part 6 of the 2001 Act.

We have often been critical in recent months of the fact that legislation gets pushed through the House. I welcome the fact that the Minister of State is both initiating this Bill in the Seanad and giving us an opportunity to deal with it and also allowing us to deal with it in an appropriate fashion, by starting with Second Stage and canvassing the views of Members. I also note what he said about bringing forward amendments on Committee Stage and we look forward to that. I congratulate him on taking a reasoned approach to this.

I noted what Senator Gallagher said about the difficulties other states have had in transposing the directive into their national law. I am not sure that Ireland is in a position to cast stones in that regard, because we have been quite slow in doing so with other legislation. I also note that the Commission is due to bring a report before the European Parliament on 6 July 2021. In light of what the Minister of State said, I certainly hope we will have it passed and in law by then and that the Commission will be in a position to report on the provisions we have put in place to implement the directive, which is an important one.

There was also an opportunity in this legislation to examine, perhaps, gaps that have arisen in the last 20 years in the ordinary course and beyond what this Bill specifically does in terms of transposing the directive, for example, the provision of greater penalties in respect of making a gain or causing a loss by deception, which is provided for in section 6 of the 2001 Act.The Oireachtas has taken time since the 2001 Act and in recent years to make a very clear policy statement in respect of the unacceptability of certain offences by marking specifically harsh or strong penalties in respect of certain types of offence, or offences that take place at a certain level. I have in mind specifically section 15A of the Misuse of Drugs Act 1977, as amended. The section provides a presumptive minimum mandatory sentence of ten years in respect of the possession of drugs for sale and supply of greater than €13,000. I recognise that the operation of the measure in practical terms has a different effect than was perhaps intended by the Oireachtas but nonetheless the Oireachtas took an important step in making a clear statement that the State would not tolerate drugs activities at that level.

When we look at section 6 of the 2001 Act, we can also say that it is possibly appropriate for the State to make a similar statement in respect of fraud and deception, also at a very high level. In recent years we have seen prosecutions in this jurisdiction for extraordinarily high levels of fraud alleged against individuals. It would potentially have been appropriate in this legislation to bring forward, perhaps a section 6A, to provide for a minimum mandatory sentence in respect of fraud above a certain level. I do not prescribe what that is, but there was an opportunity there to look at that.

Notwithstanding that, I think it is very important to have regard to what is in the Act. By my reckoning, it really does three specific things in extending the definition of fraud within the context of the European Union's financial interests; defining the offence of misappropriation and the extraterritorial applications provided for in section 6. I wish to make a point specifically in respect to the definition of "misappropriation". I heard what the Minister said about the definition section that is provided for in section 2. Misappropriation is said to have the same meaning as it has in Article 4(3) of the directive, which is included as a Schedule to the Bill. From the point of view of making legislation more accessible to the public, as much as it is to practitioners, I wonder if a definition of misappropriation could be put in to the definition section rather than forcing anybody who wants to see what it is to go to Article 4(3) of the directive, which I think is on page 17 of the Bill, and to read the definition that is provided there. I think it would make it easier.

This is the tenth iteration of amendments to the theft and fraud offences legislation in Ireland. It includes corruption offences, which the Minister mentioned. I think she also mentioned money laundering and terrorist financing, which were dealt with in the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 but, equally, it covers everything from social welfare and burglary of dwellings to miscellaneous provisions and mutual assistance. There is quite a lot of legislation here.

I have regard in particular to the great work the Law Reform Commission does in providing access to consolidated legislation, which makes it a great deal easier for anybody who wants to parse what is in the legislation to look at a consolidated Act. Again, there is possibly an opportunity for these Houses to consider consolidating the theft and fraud offences legislation into a single Act in order that we have easy access to all the relevant considerations.

Finally, I will address the extraterritorial application of the offences, as provided for in section 6. I welcome this, as I believe it is very important. Again, the nature of these offences is changing. The international nature of them is clear now and we need legislation like this to ensure that the State is equipped to deal with those matters. I do not have any difficulty with the provisions in section 6 relating to the fact that an offence committed in another State, which is an offence there, can be an offence here. That already exists in other Irish legislation. Is it possible to clarify that the principles of autrefois acquit and autrefois convict would equally apply, so that one does not have a double jeopardy situation where somebody was facing charges in both states? I think provision is already made for that generally in law but it might be worth confirming that this is the case.

I welcome the legislation. I think it is timely. I think Ireland is clearly acting in an expedient manner in terms of putting an important directive into Irish law so that it is there and we comply with our obligations under European law. As the Minister said, the Bill is quite short and it uses the Schedules to the Act to slim down the text of the Bill itself but there is a solid legislative basis for us to proceed. I welcome the Bill.