Tuesday, 8 May 2018
Criminal Justice (Corruption Offences) Bill 2017: Second Stage
I am pleased to introduce the Criminal Justice (Corruption Offences) Bill 2017 to the House this afternoon. I am also pleased to report that it received broad support on its recent passage through the Lower House.The Bill is substantial and will completely overhaul Ireland's anti-corruption regime. It consolidates seven anti-corruption Acts from as far back as 1889 up to 2010. As well as repealing and replacing the previous legislation, the Bill before us introduces a raft of new offences. Most important, it will provide for more severe penalties for those who engage in corrupt behaviour.
The Bill is a central piece of the Government's 2017 white collar crime package. It is a priority piece of proposed legislation from the Government, aimed at combatting corruption at all levels of society. This is extremely important as Ireland needs to protect its reputation on the world stage as being a safe place in which to do business. The Bill is also a response to a number of international organisations which have a monitoring and evaluation role in regard to corruption. Ireland is a party to a number of these international conventions. We take these commitments very seriously. The Bill reflects those international commitments.
The instruments include the Council of Europe Criminal Law Convention on Corruption, the EU anti-corruption convention, the UN Convention against Corruption and the OECD convention on bribery of foreign public officials. Our membership of these key international anti-corruption groups affords us a further opportunity to review the various anti-corruption measures we have already in place and to improve our laws in light of our experience and participation in these important international fora.
This Bill addresses the public and private sector. However, it has a particular focus on public officials acting in the course of their position and I believe this is only right, having regard to the high level of trust placed in them. The penalties proposed are severe and fit with the seriousness of the crime involved. The penalties for conviction on indictment for the main corruption offences are up to ten years imprisonment and-or an unlimited fine. There are additional penalties a court can impose on certain public officials for a breach of the public's trust through corruption. The courts have been given powers under the Bill to remove certain officials from office and to exclude them from holding office for up to ten years, subject to the safeguards as set out in the Bill. This can be in addition to any other penalties under the Bill.
As regards suspected bribes, while they can already be seized and forfeited under existing legislation, the Bill strengthens these provisions by allowing the courts to order the forfeiture of assets equal to the value of any bribe received. I am pleased to be providing for a number of recommendations from the Mahon tribunal. For instance, the Bill provides for a new offences covering public officials who use confidential information obtained in the course of their duties to corruptly obtain an advantage. There is another new provision which criminalises making payments knowingly or recklessly to a third party who intends, in turn, to use them as bribes.
It is also intended to enhance the ability of the Director of Public Prosecutions, DPP, to bring prosecutions by providing for extended presumptions of corruption. For instance, a presumption of corruption may arise where a person with an interest in the functions being discharged by a public official makes a payment to that official. This could be, for example, where an applicant for planning permission makes a payment to a planning official. This presumption will also now apply to payments made to persons connected to the official, such as family members and close business associates of that official.
Turning to the detail of the Bill, I wish to outline its key provisions. Section 2 defines the key terms used in the Bill, such as "Irish official", "foreign official" and "Irish public body". These categories need separate definition as some particular provisions apply specifically to those within the public sector, such as Part 4 of the Bill which contains the presumptions relating to corruption. The term "corruptly" is defined addressing a recommendation from the OECD in an earlier evaluation in this regard and the text replicates the definition contained in the 2010 Prevention of Corruption (Amendment) Act.
Section 5 of the Bill defines the offences of active and passive corruption, meaning persons who corruptly offer an advantage which is active corruption and those who corruptly accept a bribe which is passive corruption. These offences may be prosecuted under this section and no longer contain reference to corruption of or by an agent. While this term was used in the description of the original offence under the Prevention of Corruption Act 1906, the modern definition of "agent" was expanded to cover a very broad spectrum of people so that the agency principle is no longer applicable. As was previously the case, the offences encompass corruption within both the public and private sectors and the reference to office employment position or business is intended to cover all public and private sector occupations, including voluntary bodies and sporting and charitable organisations. Deleting the usage of the term "agent" was recommended by the OECD in the course of its evaluation of Ireland's implementation of the OECD anti-bribery convention.
Section 6 gives effect to a recommendation from the Council of Europe. It provides for a discrete offence of trading in influence, which prohibits the promise of an undue advantage to someone who asserts they can exert an improper influence over a public official's decision-making capacity. Like the corruption offence, this section covers both active and passive trading in influence. Subsection (3) makes it clear that it is immaterial whether the alleged ability to exert improper influence existed or whether the supposed influence led to the intended result. The provision in regard to trading in influence is also contained in the United Nations Convention Against Corruption.
Section 7 criminalises any act of an Irish official carried out in the course of their official position with the intent of corruptly obtaining an advantage for anybody. It differs from the main corruption offence in that it is not required that another party is involved. A new provision in subsection (2) makes it an offence to use confidential information obtained through their office for this very purpose. This new provision reflects a recommendation of the Mahon tribunal.
Also giving effect to a recommendation from the Mahon tribunal, section 8 contains a new offence of giving a gift etc. to another person where the donor knows or ought to reasonably know that the payment might be used to facilitate the commission of an offence under the Act.
Section 9 extends the existing offence of knowingly using a false document, to include the creation of such a document with intent to induce another person to carry out an act relating to his or her office or business, and contains an updated modern definition of "document" at subsection (3) covering a broad range of electronic records.
Section 10 provides for a new offence of corruptly threatening harm to a person, intending to influence someone to carry out an act in regard to his or her office, employment or business. I believe that this provision is a worthwhile innovation, reflecting the fact that a threat can be used in place of offering a bribe, when seeking to influence the actions of another in a corrupt manner.
Part 3 of the Bill contains provisions in regard to the jurisdiction of the State in circumstances where elements of the corruption offence take place outside the State or indeed only partly within the State.
Section 11 clarifies that a person may be tried in the State if any element of the offence occurs here, for instance, where an offer of a bribe Is made abroad but received in Ireland, reflecting a similar provision contained in the Prevention of Corruption (Amendment) Act 2001.
Section 12 provides for extensive extra-territorial jurisdiction in respect of corruption occurring outside the State, for instance, where the relevant act takes place aboard an Irish ship or aircraft, or where the person concerned is an Irish citizen or official, or an Irish registered company or body corporate as set out therein. Subsections (3) to (5) of section 12 are additional provisions inserted to give full effect to Article 7 of the European Convention on fighting corruption, and to address certain jurisdictional requirements in this regard.
Section 13 simply states that where an offence was committed outside the State proceedings may be taken in any place within the State.
One of the key elements of this legislation lies In Part 4, which sets out the presumptions which are applicable where proceedings for corruption offences under the Act are under way. They adjust the burden of proof by requiring an accused person to demonstrate that they did not act in a particular way or carry out a particular action as opposed to the usual requirements for the prosecution to prove that a particular act had been carried out. Of course, these presumptions can be rebutted by evidence proving the contrary. The standard of proof is the civil one, which is the balance of probabilities. These provisions are to assist prosecutors in securing a conviction in white collar trials, which are often complex and difficult to prove beyond a reasonable doubt.
Section 14 contains a rebuttable presumption that where a payment or gift is made to an official or a connected person, and the giver has an interest in the way those functions are exercised, then the payment or gift is deemed to have been given corruptly as an inducement or reward for the person acting or refraining from acting in accordance with his or her duties, unless the contrary can be proved. Subsection (3) lists the functions or decisions of officials which are applicable in this case, which include the acquisition or sale of property, award of tenders and contracts, licences and passports, as well as the exercise of judicial functions and the administration of justice.Subsection (3) lists the functions or decisions of officials which are applicable in this case, which include the acquisition or sale of property, award of tenders and contracts, licences and passports, as well as the exercise of judicial functions and the administration of justice. The functions of Irish officials regarding the Planning and Development Acts 2000 to 2010, are included, as well as functions relating to NAMA and the Central Bank. Reflecting the recommendations of the Mahon tribunal, the presumption extends to gifts or advantages given to or received by, or for the benefit of, a connected person of the official as defined at section 14(i). That includes family and close business relationships.
Section 15 provides for a presumption whereby if a person to whom the section applies fails to disclose a donation exceeding the relevant amount specified in the Electoral Act 1997 or the Local Elections (Disclosure of Donations and Expenditure) Act 1999, and the donor had or has an interest in the recipient's actions, the donation is deemed to have been given and received corruptly as an inducement. This presumption is based on that contained in section 3 of the Prevention of Corruption (Amendment) Act 2001. This presumption, as recommended by Mahon, will also apply where a recipient fails to return a donation exceeding the limits set out in the electoral legislation.
Section 16 relates to Irish officials defined as members or office holders providing for a presumption of corruption where persons who are required to declare certain statements of interests pursuant to the Ethics in Public Office Acts 1995 and 2001 failed to make the necessary declarations. When corruption proceedings are taken against such a person, the section provides for a rebuttable presumption of corrupt enrichment in respect of the undeclared interests, that is, that the property concerned derives from a gift or advantage received, on account of the person carrying out an act in relation to his or her office or business. Article 20 of the UN Convention against corruption required Ireland to consider such a measure. There are some new components in Part 5 of which deals with penalties and enforcement, and the objective is to provide for stronger penalties for the offences, including forfeiture of office, and to clarify the criminal liability of corporate bodies for corrupt acts committed by their directors or officers.
Section 17 outlines the penalties applicable to a person when convicted of a corruption offence under the Bill. The offence of trading in influence carries a maximum of five years imprisonment for conviction on indictment and an unlimited fine. Conviction on indictment for offences under sections 5, 7, 8, 9 or 10 carries a maximum penalty of ten years imprisonment and an unlimited fine. The sanctions in this section also include forfeiture of office under subsection (4) in respect of certain Irish officials, other than those officials whose removal from office would require a parliamentary impeachment procedure, or where there are particular constitutional provisions protecting their independence. It is important to note that the application of these penalties can only occur after a determination by a court, where a judge considers that is in the interest of maintaining or restoring public confidence in the public administration of the State and where it is in the interests of justice to proceed with forfeiture. A court may also order that a person found guilty on indictment may be prohibited from seeking certain public offices for up to ten years. The penalties for bodies corporate under the section 18 strict liability offence are fines.
Section 18 provides that where a relevant offence has been committed by a person such as a company director or any other employee, with the intention of obtaining an advantage for his or her company, then the company as well as the individual may be liable for the offence. Subsection (2) provides for a defence that the body corporate took all reasonable steps and exercised due diligence to avoid the commission of the offence. Under subsection (3), where it is proved that an offence by a body corporate was committed with the consent or connivance or was attributable to any wilful neglect of a director, manager or secretary of that body, then that person as well as the body corporate is deemed guilty of the offence.
Section 19 is a standard provision, providing that a certificate from the Department of Foreign Affairs and Trade regarding a person's citizenship shall be evidence that this is the case. This would be particularly relevant to corruption offences occurring outside the State. Section 20 relates to the seizure of a suspected bribe, and section 21 enables a Circuit Court judge to order the forfeiture of seized property. Section 22 says that provisions contained in sections of the Criminal Justice Act 1994 will apply to seizure and forfeiture provisions contained in this Bill.
Part 6 covers miscellaneous matters, including providing for consequential amendments to other legislation as a result of the amendments in this Bill. Sections 23 to 28, inclusive, update the references in other legislation, as appropriate to realisable property, corrupt conduct, corruption offences, offences against the administration of justice and relevant offences. I should specifically mention the provision in section 26 which was introduced in the Dáil as a Report Stage amendment. The OECD had recommended that Ireland remove the dual criminality requirement for the bribery of a foreign official as a predicate to money laundering. Paragraph (c) of the definition of criminal conduct now provides for that.
Sections 29 to 33, inclusive, will amend legislation relating to the election or removal of Deputies, Senators, MEPs and local authority members. This is to provide clarity around the procedure involved should a court order the forfeiture of an elected office.
In conclusion, the Bill before the House marks a significant improvement to our laws against corruption. By repealing laws that date back to the 19th century, I am happy to be bringing forward a comprehensive and easy to access modern statute. These measures will increase transparency in how public officials conduct themselves in office, while ensuring those officials who transgress the high standards required by their office are adequately dealt with. I have said before that the reputation of a State and its business community can be affected by the rigour with which it tackles corruption. Too often, the public believes that comprehensive reports produced by or for Government end up being stacked on shelves. This Bill shows that, in terms of corruption, that is clearly not the case. It is a clear response to a number of international evaluation reports regarding corruption prevention in Ireland. It is a clear demonstration of our engagement with international efforts at the United Nations, the OECD, the European Union and the Council of Europe to tackle the problem head on. By expanding our range of offences, presumptions and extra-territorial jurisdiction in the area of corruption, it ensures that our international obligations to tackle bribery and corruption both domestically and abroad are being properly addressed. In enacting this Bill, the Oireachtas will be sending out a strong message that we treat corruption prevention extremely seriously.
Finally, I should inform Seanadóirí that Ireland will be subject to a number of international reporting processes on preventing and tackling corruption in June this year. This Bill will be evaluated by the United Nations, the Council of Europe and the OECD. I hope that we can have it enacted before those evaluations commence and I seek all-party support in this House to make that happen. I believe it will stand up to scrutiny and we will be proud of having a comprehensive, strict and fair statute enacted to address corruption in Ireland. In the meantime, I look forward to an intense debate on this measure and I commend the Bill to the House.
I thank the Minister for his comprehensive outlining of the legislation. I am happy to see the legislation before the House. It is right, proper and prudent that we strengthen the current legislation. I am also pleased that Fine Gael is doing something on this issue because the programme for Government in 2011 contained a promise to do so and like many things contained in that programme for Government, we did not see any delivery on it. Therefore, I am pleased the Bill is before the House.
The Bill is based on a general scheme which was published in 2012 and approved by the Joint Committee on Justice, Defence and Equality in 2013 so it is to be welcomed that Fine Gael is finally acting on its promise. For far too long there was no political will to do anything about white collar crime. I can pre-empt what my good friend, Senator Conway, will say. He will throw some shade at Fianna Fáil and add some comments about Fianna Fáil being corrupt and refer to the Mahon tribunal.
At this stage I can nearly pre-empt what he will do but that is all right. I have prepared for this debate and I know exactly what Fianna Fáil did in this area. When Fianna Fáil was in government we introduced a comprehensive series of measures to ensure the highest ethical standards are maintained. I will outline a couple of those if I can. The objective of the white collar crime Bill, which we published, could not be achieved in 2011 because the Dáil was dissolved. We also published the register of lobbyists Bill 2012, measures to limit spending by local election candidates in 2009, the Civil Service code of standards and behaviours in 2004, the Standards in Public Office Act 2001, the Prevention of Corruption (Amendment) Act 2001, the code of practice for employees of local authorities in 2001, the Local Government Act 2001, the Local Elections (Disclosure of Donations and Expenditure) Act 1999 and the political donations Bill was also published in 2011.Fianna Fáil has a proud record of acting in this area, and I am glad to see Fine Gael is finally bringing some legislation before the House. I can see Senator Conway filling with glee and writing his response in his head, but I just wanted to put on the record of the House the proud tradition Fianna Fáil has in dealing with this issue. Fianna Fáil will support the Bill. We are very happy it is before the House.
I welcome the Minister to the House. I will be supporting the Bill and I congratulate the Minister on bringing it forward. I am struck that since the onset of the financial crisis and the passage of two major corruption tribunal reports, particularly those of Mahon and Moriarty, white-collar crime prosecutions are sorely lacking in this country while the number of offences that have been created and legislation that has been passed is quite remarkable and numerous. There is a disconnect between the Minister's desire and that of his predecessor to place more emphasis on combating corruption and white-collar crime and investigators' capacity to identify these crimes when they occur and to ensure they are correctly prosecuted.
With all of these new corruption offences, what State bodies will be principally charged with investigating alleged offences committed under the Act? Will the new offences under the Act be subject to mandatory reporting obligations similar to those offences specified in the Schedule to the Criminal Justice Act 2011? There has been a lot of talk in recent weeks about the importance of adequately resourcing the Office of the Director of Corporate Enforcement to ensure its ongoing investigations into INM are not impeded. It was only a few months prior that those same persons were calling to disband the Office of the Director of Corporate Enforcement after revelations that one of the investigators had shredded evidence in the course of the Seán FitzPatrick trial. It should be a mandatory requirement that with the introduction of every new criminal offence the offences are matched with not only adequate but appropriate new resources.
While being placed 19th out of 183 states in the most recent corruption index is not bad, we are still considered more corrupt than developed European countries such as Denmark, Norway, Sweden and the UK. In each of these states white-collar crime investigation and prosecution is more adequately and appropriately resourced and that is where Ireland continues to be sorely lacking. It is no use having all these laws if the bodies charged with investigating the crimes do not have the skills or the manpower to do what is required. Lessons have been learnt from trials such as the Seán FitzPatrick trial where prosecutions were unsuccessful and other high-profile cases such as when the Competition and Consumer Protection Commission raided the offices of CRH only for the Supreme Court to say it had overreached its powers.
It seems to me that the only agency of the State that understands criminal investigations is the only agency that has been undertaking criminal investigations for the past century and that is An Garda Síochána. Why is there no dedicated stand-alone division in An Garda Síochána which alone is charged with investigating all white-collar crimes, executing all search warrants and collating all documentary evidence? The piecemeal approach we have in Ireland with different State agencies having different investigatory powers is not working and is leading to hapless prosecutions. As we debate the passage of this Bill through this House, will the Minister consider how these offences will be resourced? As we continue to develop a lengthy book of statutory white-collar criminal offences, perhaps the Minister will explain how we can improve our investigation and prosecution of these crimes.
I have spoken in recent days in the House on the Carltona doctrine and how it finishes up masking the wrongdoers in public life. Unfortunately, Ministers take the fall for decisions that are made which they may not have been aware of at the time the decisions were made. We have seen that recently in the cervical cancer scare. We saw it in both the PTSB and Brigid McCole cases. All of these cases were taken and the State defence commenced without the Minister being advised of what was going on until it was up and running. The Minister cannot be in every Department and every part of every Department all the time.
The legislation is good. The Minister has done a good job. It is a bit late in coming but it takes a long time to work these things through the system. The Minister is to be congratulated on it. It is my view that what we need to do now is ensure we resource the offices correctly and give them the powers they need to be able to detect white-collar crime and ensure that prosecutions are successful. We do not want to see unsuccessful prosecutions. I know from speaking to the Minister casually that it is not something he would want either. I know he is desperately anxious to get this through. It is my hope we will facilitate the speedy passage of the Bill through the House and that it will be enacted by June as the Minister requested. I thank the Minister for coming to the House.
I am conscious the Minister has a teeming schedule this evening and we will not delay him over legislation that has, essentially, been agreed by all parties to be necessary. I would be the first to accept it is overdue. Senator Clifford-Lee decided to go into the history of this and pre-empt what I was going to say. I was not going to talk about Mahon or any of those things. I have huge regard for Senator Clifford-Lee. She is somebody of the highest integrity. It is unfortunate for her that she shares a geographical area with predecessors such as Ivor Callely, Ray Burke and Charles J. Haughey.
The fact is CAB is being emulated by other jurisdictions because of its success. It has a lot of work to do but it has done a serious amount of work. I commend An Garda Síochána on the success it has had in bringing an end to a production facility in Celbridge. There is a lot we can celebrate. The significant budget that has gone into An Garda Síochána increases every year. It is a commitment of the Minister and Government. We should consider figures such as €1.65 billion and the enhancements to Garda ICT and transportation facilities. In terms of dealing with crime and white-collar crime, the Government has not been found wanting and will not be.
The legislation is very important, not just to put a mechanism in place to deal with people who are corrupt and who choose to abuse their positions but also in terms of bringing us into line with best international practice and ensuring the country is meeting its obligations under various EU treaties. As the Minister has quite correctly pointed out, there are periodic reviews. An important review will take place in June to ensure we comply with OECD and UN obligations.That is all important.
Unfortunately, white-collar crime is borderless. It is no longer specific to any one country or region. We have to be an important component of an international response to these issues. No more than cybercrime, white-collar crime involves money, resources and criminal activity moving from one jurisdiction to another with great ease. Dealing with white-collar crime requires an international response. The Bill will help to bring us into a sphere whereby our structures are compliant with best international practice. I have no doubt that the Bill will evolve. As time goes on and new forms of corruption are identified and new mechanisms to deal with corruption are identified, we will have to introduce further amendments to the Bill.
The Bill is a significant incremental step in the right direction to ensure that Ireland has as good a suite of measures to deal with white-collar crime as any other country. As I said, dealing with white-collar crime continues to be a work in progress. Unfortunately, criminals always seem to be one step or two steps ahead of various jurisdictions. They work together and share their intellectual blaggardism. It is up to Governments, through Europol and the work we do in association with our international partners in Europe and elsewhere, to ensure that our laws continue to improve and loopholes are closed.
I am privileged, along with Deputy Caoimhghín Ó Caoláin, to represent this country on the European scrutiny committee on Europol which is essentially an intellectual sharing organisation. It does not perform policing, but deals with intellectual crime and ensures that intelligence gathering is at the best level it can be.
I know from having attended meeting in Brussels that the work Europol is doing in respect of white-collar crime is groundbreaking. An Garda Síochána feed into that and is also benefitting from the intellectual capacity and gathering ability of Europol.
The Bill is important. It is overdue, but it is coming in under the watch of the Minister and I sincerely hope it gets all-party support in the House as it did in the Lower House.
I thank the Minister for his attendance today. We will support the Bill. Like me, the Minister probably did not expect the debate thus far too have taken on such a tetchy or defensive tone but perhaps that is indicative of from where we are coming and reflective of earlier politics. That is why the Bill is important, as has been rightly acknowledged by everyone despite the back-and-forth debate.
The Bill brings current laws on corruption up to date and consolidates them. It also implements a number of international and EU obligations on the State, as the Minister has outlined. The Bill aims to clarify and strengthen corruption offences in this jurisdiction and those from outside the State who act within it. It provides greater clarity on trading in influence offences, which is overdue.
Whether in public life, business or commerce, corruption has been part of the history of this State. We have had tribunals of inquiry investigating various issues, including planning corruption, zoning controversies, bribery, corporate fraud, significant Government contracts awarded in a process subsequently found to be biased and defective, unexplained payments and a banking crisis in which nobody paid the price for their actions other than the ordinary citizen.
This State’s attitude towards corporate fraud and corruption, however, has been casual and slack up to now. It appears that some Governments have been most passive in this area. However, the Bill recognises little has been done in this area since the Government came into office. I hope it will address such cultural issues, particularly in institutions and sectors where questionable practices almost appear to be the norm.
This culture of corruption goes right to the top of many institutions, be they private or public, throughout the State. To state otherwise would be blind to the past. The body responsible for eradicating corruption is the Office of the Director of Corporate Enforcement, ODCE. Last November, it was announced that this office was being overhauled. This was welcome news given the history we all know about. The office brought no prosecutions and achieved no convictions over the past two years. Only 43 prosecutions have been brought by the ODCE in the past decade, a shockingly low amount over this time, especially given the context of what happened since 2007. In addition, the annual reports of the ODCE show that almost €6 million in its allocated funding has been returned to the State over the past three years, including €2.7 million in 2016. In the same year no prosecutions or convictions were achieved by the agency. There is clearly a requirement for an overhaul of the agency as well as more investment therein.
One matter which most frustrated people over the course of the recession was that while people suffered, some grievously, it appeared no one was brought to justice for the banking crisis. We did not see the level of court cases that were brought in the US or in other jurisdictions where corrupt and immoral practices took place. This may have been due to deficiencies in legislation, and that is why this Bill is welcome. It also happened because of the under-resourcing of and lack of support for the ODCE. It needs extra powers and additional resources.
The corporate liability of the Bill needs to be strengthened. In particular, the defence of reasonable action needs to be clearly explained. Members know from the Paradise Papers and the scandals involving AIB and other banks that financial institutions will use any chink in the legislative armour to squeeze more money out of the taxpayer and their customers. Corruption comes in many different forms and ways. As we all know, there has been institutionalised white-collar crime and corruption in the Sate that was facilitated by legislation.
We saw this spectacularly in the Apple tax debacle. Much-needed income for public services was lost by the Government’s inaction and failure to tax this company. The Government’s track record on dealing with, challenging and holding people to account for white-collar crime is appalling. The key to eradicating corruption is not just legislation, and robust legislation at that. It is also about pursuing those who are corrupt and bringing them before the courts. There can be no tolerance of or hiding place for people involved in white-collar crime. They have to face the full rigour of the law. That is why I welcome the Bill and look forward to working in partnership with the Minister and colleagues in the House to ensure that we bury that past culture of negligence and utilise and harness the proposed legislation to its fullest to work co-operatively and ensure the kind of culture and crimes we saw committed in the past are not allowed to be repeated in the future.
I welcome the Minister to the House. On this occasion, I am going to have the pleasure of agreeing with him again about the Bill. He sometimes complains that I do not agree with him enough. One of the things about Laois people is that we disagree in the most intellectually fertile way.
This is a very welcome Bill which has been a long time coming. To my good friend and colleague, Senator Martin Conway, I have to say that of course Nora Owen introduced the legislation but she did so only after the death of Veronica Guerin.
She established the Criminal Assets Bureau, CAB, after a series of debates in Dáil and Seanad Éireann. In the Dáil Tony Gregory, from whom the idea originated, spoke about the necessity to bring together the Garda, Revenue Commissioners and social welfare. It was only after the death of Veronica Guerin that that happened. I said at the time that I knew the Government would claim credit for this. The real credit goes to Tony Gregory and I do not think his name should be forgotten.
Thank you very much.
People have complained for a very long time that nobody goes to jail, loses his or her job or has to pay a fine for white-collar crime. The Bill will ensure that at least some of them may face this prospect. It was a long time coming. The general scheme of the Bill was introduced in 2012. What has happened in the past six years? It is updating legislation which goes from 1889 up to 2010. As I said, there was a very long gestation period.
There is also an interesting ancestry for the Bill, which includes the United Nations, the Council of Europe, the OECD and, of course, the lamentable Mahon tribunal which went for years and cost millions of pounds. I will not rehearse what is in the Bill because I am sure the Minister either has done so or will do so. I will just refer to a few of the elements of it because the intention of the Bill is to register the fact that this kind of corruption leads to serious social and economic damage to the fabric of the State. For this reason, a sentence of up to ten years is provided for as well as unlimited fines, and I say hear, hear to that. I would like to see this happen because the people involved in this usually have the acumen and material capacity to hire the best lawyers in the State and wriggle their way out of it. The Bill provides for a penalty of forfeiture of office if an Irish official is found guilty of corruption on indictment. Again, I say hear, hear to that. However, the extraordinary thing is that Members of Seanad Éireann or Dáil Éireann get away scot-free. They are not subject to this penalty. This is a nonsense. I know there may be some twiddling difficulties with it, but let us twiddle and tweak it, even if a referendum is necessary because if anybody should go to jail or be fined for this, it is public representatives. They are the people who should be least susceptible to corruption. I ask the Minister to consider extending the Bill to cover Members of Seanad Éireann and Dáil Éireann. After all, we are excluded from various jobs. We are excluded from sitting on certain committees and we are not allowed to do this, that and the other and yet we cannot get a go to jail card. Why not? I would like to quote the Minister's own words in Dáil Éireann last year. He said, "I believe that Members of this House understand that it is only by holding ourselves up to the highest standards, that we can tackle corruption and white-collar crime effectively and maintain or improve the trust, respect and support of the Irish public", but this Bill does not do that. I said I was not going to disagree with the Minister but I could not resist the temptation because this is a fundamentally important step.
One other thing to be welcomed is that we will, more or less, be waving tatty bye to the Office of the Director of Corporate Enforcement. That is a damn good thing because it was useless. I remember hearing the director of corporate enforcement say there was nothing wrong and that we would have a soft landing. It was utter, complete and total balderdash. He was not up to the job. The office has been severely criticised because in addition to this rubbish which went on in the lead up to, and during, the crisis, it utterly failed in the prosecution of Seán FitzPatrick. It made an total, complete and utter bags of prosecuting Seán FitzPatrick and it was criticised by the judge in the case.
There is a new offence of trading in influence and that prohibits the promising of an undue advantage to an official. There is also the crime of an applicant for planning permission makes a payment. This is something that has really vitiated the situation at local authority level. I must say I am rather naïve and I was utterly shocked at the level of local authority corruption that was revealed.
The other good thing that will happen is that companies and public bodies will have to develop anti-corruption policies, roll them out and give training to their employees. It astonishes me that the average employee or company director would not recognise corruption when it faced him or her. I certainly would but perhaps that is part of the religious background of being an Anglican.
I welcome this Bill. It is a good day for Ireland as it is about bloody time that we got it. I will wait to see it being implemented and I will be there to applaud when the first company director, official or whoever it is, or if the Bill is amended in the way I would like to see it amended, the first Member of Dáil Éireann or Seanad Éireann, is on his or her way to the clink. I say well done to the Minister as it is about time. He is the one who has done this, so he gets the full credit. This will help to improve standards in Irish life.
I will try to follow Senator Norris. The main reason I wish to speak on this Bill is to say that no one should be above the law, whether for stealing an item from a shop or for white-collar crime. There is a perception among the public that white-collar crime is not something for which people can be sent to jail or held accountable but this legislation will do that and it needs to be implemented. I welcome that. I suspect that if it had been in place prior to the crash in 2008, we would be in a different place today.
The Criminal Assets Bureau, CAB, has worked in fighting corruption and one can never put enough resources put into it. It cuts across every area of crime and we need to ensure it is kept properly resourced and that we consider it all the time. Something I feel strongly about, and which is being included in most legislation coming through, is that when an organisation is established, there should be a review in terms of due diligence every three to five years. I would like to see that apply to organisations like CAB to make sure they are moving apace with technology and in the context of the types of crimes being committed because they are evolving all the time.
I very much welcome this Bill but everything is not a separate component; everything is integrated. This is all about gardaí on the ground and about CAB. It was always said that the lady robbing a sliced pan for her family was held to account more by the State and by the legislation than perhaps the company director raiding the pension fund. This legislation sets that right and it is something I very much welcome.
I welcome the Minister to the House and I acknowledge this significant piece of legislative work which has been passed by Dáil Éireann. I will make a few points and will then express concern at one aspect of the legislation.
I note the Bill provides for nine corruption offences, namely, active and passive corruption in section 5, new offences of active and passive trading and influence in section 6, corruption in office and employment in positions of business in section 7, corruption through intermediaries in section 8, creation and use of false documents for corrupt purposes and a new offence of intimidation for corrupting purposes in section 10, and corruption by and on behalf of corporate bodies, including a new offence of a failure to avert corruption in section 18. That all has to be welcomed as it is all very significant. Corruption manifests itself in bribery, the misuse and influence of power and the theft and misallocation of resources. That is worth spelling out because some people think this is far removed from their personal, political or business life.
It is worth remembering that corruption comes in many forms. Political corruption undermines the legitimacy of democracy. Mahon, in his final report, said that it is a fundamental breach of public trust and inherently incompatible with the democratic nature of the State and is a form of social rust which corrodes the political and institutional systems in which it takes root. That is particularly important. Corruption also manifests itself in the administration sphere for citizens and their fair treatment and rights and it diverts resources and investments for the common good.In business, corruption undermines and distorts the market and hampers development.
I will speak briefly on the findings of the Mahon report and what Mr. Justice Mahon described as a vicious cycle of corruption that affected political and planning life in this State. We must learn from the Mahon report. While I do not intend naming the local authority in question on the basis that due process must apply, anyone who read the newspapers at the weekend will be aware that a report on alleged planning corruption is sitting on the desk of the Minister for Housing, Planning and Local Government, Deputy Eoghan Murphy. The response attributed to the Minister in the weekend's media reports was that he needed more time to consider the report. I call on him to examine the report quickly and publish it if possible. It is important for the planning authority in question, its staff and elected members that the truth and facts relating to alleged corrupt activities are placed in the public domain. Information regarding the report has entered the public domain as it was covered in the media at the weekend. I call on the Minister to publish the report.
The briefing note circulated with the Bill states the legislation provides for the seeking of a court order prohibiting an individual seeking a public office or post following conviction on indictment for a corrupt offence. However, this prohibition will not apply to any individual seeking office as a Member of Dáil Éireann, Seanad Éireann, the European Parliament or a local authority as it is not intended to interfere with the electoral process. I do not accept this proposal. It is wrong and needs to be revisited. It is my intention to introduce an amendment to address this specific matter.
I would like to work with the Minister and his officials in this regard. Having listened to Senator Norris's comments on the election of Members of Dáil Éireann, Seanad Éireann, the European Parliament and local government, it is my view that the same regulations should apply to people who are elected to office. I will reserve my position on this matter. We should put our heads together and introduce severe penalties, without exception or favour. If politicians are found to be in any way corrupt, they must be sanctioned. I ask the Minister to address this issue and spell out clearly what is meant by the current proposal in case I have misunderstood the position. I hope we can work together to clarify any misunderstandings that may arise and give effect to the Minister's comments in the Dáil about leading by example, to which Senator Norris referred. We are elected to high office and we, too, must pay a penalty if we are found to have fallen short or to have been involved in any form of bribery or corruption. To be precise, my main concern regarding the legislation relates to section 18(4)(c), which addresses the issue of people seeking election to Dáil Éireann, Seanad Éireann, the European Parliament and local authorities.
I welcome the Minister and the Bill. As the Minister stated, this is significant and substantial legislation which overhauls our anti-corruption regime. None of us is above the law, irrespective of who we are or where we are from. There can be a sensational rush to populism and to be all things to all people. I have always taken the view that politics must not be the preserve of a few and it must be open to everyone to become involved in politics and to run in elections. As politicians, our words and actions are very important.
As Senator Craughwell stated on the Order of Business this morning, we must always hold people to account. However, we must do so based on all the facts. For this reason, I welcome the more severe penalties which will apply to those who engage in corrupt behaviour and practices. The key phrase in this connection is "behaviour and practices". Politicians must always lead by example, both in what we say and how we behave. I was slightly amused, therefore, by Senator Clifford-Lee's pre-emptive strike against Senator Conway at the beginning of the debate. I ask Members to cast their minds back to Tim Sebastian's interview with Bertie Ahern. Perhaps we should reflect on that.
Notwithstanding Senator Norris's remarks on the long gestation of the Bill, it is good the legislation is before the House. I remind Senator Ó Donnghaile of the import of what he suggested regarding Apple. The Government and Apple have appealed the decision of the European Commission in 2016. Apple will pay money into an escrow account which will be held on behalf of the Government. Apple and the Government are challenging the Commission's ruling in this matter. The language we use in discussing such matters is important.
People were driven cracked and daft by the failure to hold anyone in the corporate world to account for the collapse of the banking sector, despite numerous inquiries and decisions by the Office of Corporate Enforcement to take cases. While we must accept the decisions of juries of our peers in these cases, people also want accountability and it drove them berserk that no one was held to account. There is a perception among some that we are soft on white collar crime and wrongdoing in the corporate world. I hope this perception will change as a consequence of this legislation.
I will not prolong the debate as I understand the Minister is scheduled to attend another event. He is a reforming Minister and I do not mind that it has taken so long to reach this point. This Bill demonstrates his bona fides and the Government's commitment. Methinks those who complain about the time taken to reach this point protest too much on the grounds that, as the Minister stated, the Bill consolidates seven anti-corruption Acts introduced since 1889.
This is a great day's work on which I commend the Minister whom I have always found to be reforming and supportive and positive on many issues. To digress for a moment, his speech on the Civil Partnership Bill in the Dáil was a landmark moment. This Bill is another landmark for him and the Government.
We must make abundantly clear that we are collectively committed to tackling white collar crime. The package of measures the Minister has announced is a significant demonstration of the Government's intent in this regard.
Senator Norris referred to politicians being exempt from certain provisions of the Bill. I hope everyone will be held to account in the same way. I commend the Minister on his work in the Department.
I thank Senators for their favourable and positive commentary on the Bill, specifically Senators Clifford-Lee, Craughwell, Conway, Norris, Kieran O'Donnell, Ó Donnghaile, Boyhan and Buttimer. I acknowledge the broad support for this legislation which undoubtedly echoes the broad level of support the Bill received in the Dáil. We all agree that corruption in all areas of society needs to be tackled. The Bill introduces a range of new offences.It will be a welcome addition to the Statute Book once processed and enacted. As mentioned earlier, it will go a significant way towards meeting our obligations under various EU directives and international anti-corruption conventions. It is important that Ireland is recognised on the global stage as a safe bet for business, investment and development. As I said earlier, the Bill will be considered in Paris in June of this year by the OECD working party on bribery. I believe it will be seen as a significant improvement in our laws to date and that it will receive broad support in that forum.
While the Bill addresses both the public and private sectors, Senators will have noted a particular focus on public officials acting in the course of their duties. We must ensure that public officials who make use of their positions for their own corrupt benefit or those who facilitate corruption are adequately punished. Public officials have a unique duty to the society they serve and, as such, they should be held to account for any misdemeanours or breaches. While I believe that corrupt activity among public officials is the exception rather than the norm, we cannot be complacent and we must continue to improve our systems and laws.
A couple of points were raised during the course of the debate that I would like to mention. Senator Kieran O'Donnell called for due diligence and a review of technology and resources for the Criminal Assets Bureau, CAB. I can confirm for Senators that there is to be a review of the anti-fraud and anti-corruption structures as part of the while collar crime package and the issues relating to the Criminal Assets Bureau will be examined in the course of that process, which is well under way.
On the concerns raised by Senators Craughwell and Ó Donnghaile, as mentioned previously the Criminal Justice Act 2011 provides An Garda Síochána with innovative tools for the investigation of white collar crime. Furthermore, the extended presumptions in this Bill will significantly enhance the ability of the Director of Public Prosecutions, DPP, to bring forward a prosecution for offences under this Bill. The upcoming criminal procedure Bill will also deal with the matter of pre-trail hearings, which will significantly reduce the length of complex trials such as those involving white collar crime and corruption. In addition, my Department is committed to conducting a wider review of the effectiveness of State bodies with a role in the prevention, detection, investigation and prosecution of engagement on fraud and corruption with a view to ensuring that, as stated by Senator Craughwell, our continued effectiveness in dealing with white collar crime is not in question.
Senators mentioned the matter of resourcing. As part of the white collar crime package announced last year, reform of the Office of the Director of Corporate Enforcement, ODCE, is central. This will require not only restructuring but also resourcing. Senators will be aware that the reform of this office is being overseen by my colleague, Deputy Heather Humphreys, Minister for Business, Enterprise and Innovation.
A number of Senators mentioned the matter of the delay in bringing this Bill to the House. This Bill reforms and consolidates seven major pieces of legislation dating back to the 19th century. It gives effect to numerous requirements of international conventions, as well as the recommendation of the Mahon tribunal and other policy considerations. This is a technical area of the law. As such, time and care was needed in drafting the Bill to ensure that we have provisions that are robust and produce the intended result of criminalising corrupt practices in all sectors and to ensure the law is in a position to punish those involved.
Senators Norris and Boyhan stated that public representatives will not be subject to the offences or penalties under this Bill. That is not accurate. Under the Bill, the only penalty that does not apply to public representatives is the prohibition to seek another office in the future. I am happy to debate the detail of this measure in the context of an amendment on Committee Stage from Senator Boyhan or any other Senator. I would be concerned if we were seen to be interfering unduly with the democratic process. I want to assure Senator Boyhan and Senator Norris that, as in the case of public officials, elected officials, Seanadóirí, Members of Dáil Éireann, members of local authorities and Members of the European Parliament can be prosecuted and subject to penalties, including forfeiture of office.
The issue that the Senators are concerned about is the matter of future fitness for office. I am not sure to what extent we can disqualify people from going before the electorate but I am happy to come back to the issue on Committee Stage. In addition, section 17(4)(c) of the Bill provides that where a person is convicted of a corruption offence, the court may make an order prohibiting that person from seeking to hold public office for up to ten years. Such a penalty can be imposed where a court is satisfied that to do so is in the interests of justice and in the interests of maintaining or restoring public confidence in the public administration. However, there is no provision in the Bill for a court to prohibit anyone from seeking to be elected to Dáil Éireann, Seanad Éireann, the European Parliament or a local authority, following a conviction for a corruption offence. There were some constitutional issues raised in regard to a prohibition order that would prohibit a person seeking to be elected a Member of Dáil Éireann or Seanad Éireann. Any conviction would, of course, be a matter of public record and, as such, the voters, whether a Dáil or Seanad electorate-----
-----would be aware of a candidate having such a conviction and, of course, they would be requested to exercise their democratic right accordingly. I note the point the Senators have made and, as I said, we can return to it on Committee Stage.
I thank Senators for their valuable contributions. I have taken note of the issues raised and I look forward to the Committee Stage debate when we can resume on the points at issue.