Seanad debates

Wednesday, 16 May 2018

Criminal Justice (Corruption Offences) Bill 2017: Committee Stage

 

Sections 1 to 16, inclusive, agreed to.

SECTION 17

10:30 am

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Amendment No. 1 is in the names of Senators McDowell and Boyhan.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I move amendment No. 1:

In page 17, between lines 3 and 4, to insert the following:

“(1) The District Court may try summarily a person or body corporate charged with a summary or indictable offence under this Act if—(a) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,

(b) the accused, on being informed by the Court of his, her or its right to be tried with a jury, does not object to being tried summarily, and

(c) the Director of Public Prosecutions consents to the accused being tried summarily for the offence.”.

I welcome the Minister and his officials to the House. On the previous occasion, I indicated that I had some concerns about this issue and therefore this amendment should not come as a surprise. I spoke to a number of people in both Houses about the Bill and I also sought independent advice, although not legal advice, on the matter. I came away with the view that in terms of the importance of this issue, politicians cannot be above the law.

Photo of David NorrisDavid Norris (Independent)
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The Senator is on the wrong amendment.

Photo of Victor BoyhanVictor Boyhan (Independent)
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We are on section 17(4)-----

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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We are dealing with section 17, amendment No. 1.

Photo of David NorrisDavid Norris (Independent)
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It is about the District Court.

Photo of Victor BoyhanVictor Boyhan (Independent)
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Senator Norris is calling me for-----

Photo of David NorrisDavid Norris (Independent)
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For amendment No. 1.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I am sorry. I am with the Senator now. It is amendment No. 1, line 4.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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It is in the Senator's name and that of Senator McDowell.

Photo of David NorrisDavid Norris (Independent)
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It is about the District Court summarily trying-----

Photo of Victor BoyhanVictor Boyhan (Independent)
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The Senator is right. I thought he was going to that.

Photo of David NorrisDavid Norris (Independent)
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That is what we are going to. It is about the District Court. The Senator proposed that.

Photo of Victor BoyhanVictor Boyhan (Independent)
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Yes.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Does Senator Boyhan wish to speak on it?

Photo of Victor BoyhanVictor Boyhan (Independent)
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Yes. I wish to speak on both amendments but I will deal with this one.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Amendment No. 1 is being taken on its own. The Senator has moved it and he can speak on it.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I am sorry.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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No problem.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I had two amendments next to each other. This amendment, which I will quote to ensure there is no ambiguity, is to section 17, and reads as follows:

On page 17, between lines 3 and 4, to insert the following:

"(1) The District Court may try summarily a person or body corporate charged with a summary or indictable offence under this Act if—(a) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,

(b) the accused, on being informed by the Court of his, her or its right to be tried with a jury, does not object to being tried summarily, and

(c) the Director of Public Prosecutions consents to the accused being tried summarily for the offence.”.

The aim of this amendment is a simple one. It is to ensure that if an accused is prosecuted for an offence under this Act, the accused has the option to elect for a jury trial. As the Bill stands, if a person or body corporate is prosecuted for an offence under this Act on a summary basis, in other words, where the maximum custodial sentence is 14 months, that criminal trial would be heard before a District Court judge.

Many people may say the offences will have lesser penalties and that this is an efficient way for a crime to be prosecuted. It is already the case that for certain theft and fraud offences an accused can elect to have their trial heard by a jury even when prosecuted on a summary basis. I cannot see how offences prosecuted under a corruption Act are any less consequential than theft and fraud offences.

I recognise that the Minister wishes to have this Bill passed by June. I want to facilitate that but when it comes to a person's liberty and ensuring they receive a fair trial, we have to be extremely careful that in our collective desire to ensure no person is above the law, we do not lose sight of due process. I am interested in hearing the Minister's response on the amendment.

Photo of David NorrisDavid Norris (Independent)
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I support this amendment for the reasons Senator Boyhan, my colleague and friend, has stated but also because the three significant elements are met within the Bill. First, we have to have the court deciding that it is a sufficiently minor offence to be tried in this manner. Second, we have to have the agreement of the accused and the co-operation of the Director of Public Prosecutions, DPP. There will be no conflict here and it seems to me to be the reasonable thing to do and it also follows the tradition of the treatment of other offences in a similar manner.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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I wish to reiterate what has been said. I am happy to support the amendment, which allows for a District Court to hear the case and still afford protections to the person against whom the case is being taken. It may also take pressure off the higher courts, which is a positive move. I am willing to listen to the Minister if he comes back with an argument against it but I believe this move would be a welcome one.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I thank Senators Boyhan, Norris and Ó Donnghaile for their comments. As has been said, the amendment relates to section 17 of the Bill to provide for a right of election for an accused to be tried summarily. It is a similar approach to that which is being taken in section 2 of the Criminal Justice Act 1951 and section 53 of the Criminal Justice (Theft and Fraud Offences) Act 2001, but the key difference is that the provisions in those Acts relate to offences that are specified in various items of legislation to be triable on indictment only. The provision, therefore, gives jurisdiction to the District Court to try summarily what would otherwise have been an indictable offence and therefore subject to a trial by jury.

The amendment proposed by Senator Boyhan does not sit neatly with the provisions of this Bill as currently constructed. It already provided for proceedings to be tried summarily or on indictment. This approach to the construction of offences, which is known as a hybrid offence, has been widely used in the Statute Book for the past decade or more. It appears what Senator Boyhan wishes to achieve, supported by Senator Norris, is that an accused would have a right to object to being tried summarily in a given case in which instance the DPP would make a decision on whether to try the accused for the offence on indictment.

While I appreciate the importance of trial by jury in our legal system, it has long been accepted that minor offences can and should be tried in the absence of a jury. For practical reasons, and often for other reasons, it would be an offence of a more minor nature that would be accepted by the prosecution pre-trial. The important thing is to balance the rights of the accused persons with the effective and efficient administration of justice. The Constitution provides only that minor offences be tried summarily in the absence of a jury.

In drafting the Bill I have given careful consideration to the construction of offences and I am happy that the approach in the Bill is the best way forward. If the Director of Public Prosecutions elects to try an offence summarily, the court must still accept jurisdiction and will only do so if the offence is a minor offence. The Supreme Court, in the case of Reade v.Reilly, has expressed the clear view that an election by the DPP to try a case summarily does not bind the District Court to do so and explained that this was to ensure that the rights of an accused to a trial by jury for a non-minor offence would not be unduly interfered with.

As I mentioned previously, the provisions in section 2 of the Criminal Justice Act 1951 and in section 53 of the Criminal Justice (Fraud and Theft Offences) Act 2001 relate to indictable offences only, not hybrid offences as we have provided for in this Bill. Even in the wording of the amendment as proposed, it is clear that it does not make sense in the context of what in effect is a hybrid offence. For example, the amendment states that the District Court may try summarily a person or body corporate charged with a summary or indictable offence, essentially providing that a summary offence may be tried summarily, which seems to be an obvious statement of fact.

I see where the Deputy is coming from but having regard to the construct of the Bill, I am not prepared to accept his amendment because the consequences have not been fully considered. I know Senators feel strongly about it. It was not an issue that arose in the context of Dáil proceedings but I ask Senators, having regard to our carefully constructed body of criminal law and the long-established practice and procedure in the courts for summary offences, indictable offences and the hybrid offence we are dealing with now, to leave matters as they are.

Photo of David NorrisDavid Norris (Independent)
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The Minister, as always, has been very courteous in his reply. However, I put it to him that this amendment was prepared by Senator Michael McDowell, who is a leading senior counsel, a former Attorney General and a person who has very long experience in the criminal courts, therefore, he knows what he is doing. With the greatest respect, he is not here.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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Where is he?

Photo of David NorrisDavid Norris (Independent)
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He is probably in court - I would not be surprised - making lots of money.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Not as much as the Senator got-----

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Allow Senator Norris to continue without interruption.

Photo of David NorrisDavid Norris (Independent)
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I made a lot money along with what he made when I took on the press for all the lies they told about me in the presidential election. I won ten libel actions, which was absolutely wonderful.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Thank you, Senator.

Photo of David NorrisDavid Norris (Independent)
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The Minister's reply is intellectually confused. He talks about the accused person and so on. It is not just the accused who is involved. There must be three areas of consent. The first is that the court must be of the opinion in this respect. That is the first hurdle. The second is that the accused agrees with this and thinks it is in his or her interest to do so. The third is that we have the agreement of the Director of Public Prosecutions. These are all points the Minister raised, as if the Director of Public Prosecutions was offended, taken aback or did not agree with this.

Agreement is contained in the amendment. It includes the agreement of the accused and the consent of the court. All these matters, which the Minister raised quite appropriately, are all met by the amendment. This is a good amendment, it stands in that respect and I do not accept the intellectual thrust of the Minister's argument.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I echo what Senator Norris has said. Senator McDowell cannot be here because he has other matters to which to attend today. He is fully aware and supportive of this amendment. He has a very learned and legal mind and he is a former Attorney General, a former Minister for Justice, a former Tánaiste and a former Cabinet Minister.

Photo of David NorrisDavid Norris (Independent)
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And a current Senator.

Photo of Victor BoyhanVictor Boyhan (Independent)
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If the Minister will not support the amendment on this Stage, will he consider it for the next Stage? That is a reasonable and fair request. In the meantime we will have more advice from more learned gentlemen and women in this area.

Photo of David NorrisDavid Norris (Independent)
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On the next occasion we might have Senator McDowell here.

Photo of Victor BoyhanVictor Boyhan (Independent)
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If the Minister is agreeable, we may deal with the amendment on Report Stage.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Senator Leyden indicated he wishes to speak to this amendment but he before he does so, I take this opportunity to welcome to the Public Gallery officers, members and friends of the Athleague branch of Comhaltas Ceoltóirí Éireann with renowned musicians and singers. I understand they are guests of the Senator and that his wife, Mary, and son, Conor, of Castlecoote Lodge bar and replica Dáil and Seanad lounge in County Roscommon are also here. They are very welcome to the House. I take this opportunity to point out that there is tradition that when one is a guest, one does not have to pay for anything and that applies to the members of the visiting party.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Is the Acting Chairman speaking for himself?

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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They are all very welcome to the House and I hope they enjoy their visit.

Photo of David NorrisDavid Norris (Independent)
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Well done.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I call Senator Leyden to speak to amendment No. 1.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I agree with that proposal.

Senator Clifford-Lee, who is our spokesperson on justice, outlined the position regarding the Bill and the fact that we are supporting it. We have great respect for Senator Boyhan, who is a great colleague, and we normally support his amendments in most cases. However, in this particular case we are not supporting his amendment because we are anxious that this Bill would go through as quickly as possible.

Photo of David NorrisDavid Norris (Independent)
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A vote would only delay it by a few minutes.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Allow Senator Leyden to continue without interruption.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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We are in favour of the Bill, in principle, and we will be supporting it. With respect to a former eminent senior counsel, he is here as a Senator, not as a senior counsel. His opinion and our opinions are equal in this House. I could not say that in respect of the Four Courts. He would have a superior approach there compared to us. I respect that is his opinion but the opinion of our spokesperson is quite clear, namely, that we are not supporting the amendment in this case.

I commend the Minister on the work he is doing. I concur with Senator Norris that he is courteous in coming to this House. He was in Castlerea a week ago and the normal procedure is that a Senator who represents the area would be invited to such events.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I do not see any reference to this in the amendment.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I apologise; I told our guests to turn off their mobile phones but I did not take my own advice. The Minister came to Castlerea in Roscommon and I am not very offended but I was not invited to any of the Minister's events. Knowing the Minister when he is outside the House, I was frankly surprised by that. He was in my area which I have represented for-----

Photo of David NorrisDavid Norris (Independent)
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Stop fishing for invitations.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Senator Leyden, we are dealing with amendment No. 1.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I was very encouraged by the fact that the Minister spoke about the possible reopening of the Tarmonbarry Garda station, which is on the crossing of the River Shannon-----

Photo of David NorrisDavid Norris (Independent)
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That is frightfully relevant.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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It is very relevant to me and to the people of Roscommon.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Senator Leyden, please.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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The Minister will be aware of a major robbery that took place in Strokestown. The bank was robbed and those involved went across the River Shannon without being stopped. Nobody stopped them.

(Interruptions).

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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There is a Garda station in Tarmonbarry and I appeal to the Minister to reopen it. We would be equal then in this respect to the area covered by the Minister, Deputy Ross, when he opens Stepaside Garda station in Dublin, which is not a priority.

Photo of David NorrisDavid Norris (Independent)
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May I have an opportunity to speak about the reopening of Fitzgibbon Street Garda station?

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Certainly not. Resume your seat.

Photo of David NorrisDavid Norris (Independent)
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Oh dear.

Photo of Lorraine Clifford LeeLorraine Clifford Lee (Fianna Fail)
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What about Rush Garda station?

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I call the Minister if he wishes to add anything further to his reply to the amendment.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I acknowledge what Senator Boyhan said in reply to my submission of defence on the amendment. I certainly mean no disrespect to Senator McDowell regarding the fact that he is not here. I want to dissociate myself from the comments of Senator Norris as to where Senator McDowell might be. However, I acknowledge what Senator Boyhan said. I would be pleased to go along with his suggestion that he would leave the matter over until Report Stage. That would allow for further reflection and further work to be done. In that regard, I agree with Senator Leyden regarding the need to obviate a total restructuring of this important legislation. I understand we are all keen to ensure there is no further delay in preparing the Bill for Report Stage.

As Senators will be aware, there are a number of international organisations interested in ensuring the enactment of this important legislation. I want to avoid delays, where possible, but I want to ensure that if the Seanad can improve the Bill in any way that we can do so. In that regard, I would be very happy to consult the Office of the Director of Public Prosecutions and the Office of the Attorney General in advance of Report Stage where the matter can be resumed, and perhaps in the presence of Senator McDowell, to which some deference has already been made.

I would say to Senator Leyden, and I am conscious to remain within the confines of the debate, that I missed him on my visit to Roscommon.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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There you go.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I would be very happy to invite the Senator to any further meetings that I arrange in Roscommon requiring my presence.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I thank the Minister for that.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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The last time I was in Roscommon at official functions, of which there are many, I also missed the Senator, but I had the pleasure of the company of his daughter who had a very successful year as cathaoirleach of Roscommon County Council. I wish her well for the remainder of her term.

My colleague, Senator O'Mahony, has been in contact with me also regarding some Garda stations in the west, not too far from his own neck of woods, if I can use such an expression. I am pleased to inform the House that Ballinlough Garda station is in course of refurbishment. I am very keen, having visited Roscommon, to have this Garda station refurbished to the highest quality at the earliest opportunity. I am aware of the situation in Tarmonbarry. I am aware of the traffic issues in Tarmonbarry and I would be happy to consult bilaterally with the Senator on that. I hope a form of resolution can be found to what is a challenge, subject to the availability of resources. I am always pleased to take representations from Senator Leyden.

I acknowledge the Senator's support of the Bill and of the Government's stance towards this amendment, but I hope Senator Norris will accede to Senator Boyhan's proposal that we will reflect further on amendment No. 1 and resume on it on Report Stage.

Photo of David NorrisDavid Norris (Independent)
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Absolutely.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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We will confine ourselves to the actual Bill from now on with everybody's co-operation.

Amendment, by leave, withdrawn.

Photo of Victor BoyhanVictor Boyhan (Independent)
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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.

Photo of David NorrisDavid Norris (Independent)
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I raised this matter first on Second Stage and I spoke to my colleague and friend, Senator Boyhan, about it and got his support for an amendment. When I raised the issue I was partly relying on a reading of the Government brief, which I misread. I had thought that Members of Dáil and Seanad Éireann had been excluded from the entire operation of the Bill.The Minister was very gracious because he did not rub my nose in it. He said:

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.

We put such an amendment down.

I should say that I spoke to my assistant, who is absolutely wonderful, and gave her a copy of the Bill which I had marked up from page 18, to delete everything from line 16 after "as an Irish official" down to line 23.

However, somehow the amendment that was put down was as follows: "In page 19, to delete lines 17 to 23". There was a mistake from my office in the page number stated and the amendment would not make sense if it related to page 19. I do not know what happened. I put my amendment in immediately and arguably it should have been the first to be listed, although I am very happy for Senator Boyhan to take up the matter.

We do need a situation where, as Senator Boyhan said, politicians are not above the law. Do we really want people in the Dáil or Seanad who have been convicted of corruption? Do we want corrupt politicians in this country? The public is already very suspicious of politicians who have the lowest levels of trust among the public with the exception, I am glad to say, of journalists whose rating is even lower, and so they should be. We already have evidence from the other House of people against whom grave suspicions have been raised by various tribunals, who were elected and, indeed top the poll, because they are very good constituency workers. There was no criminal finding but it does suggest that such a finding could be made against a public official.

I remember former Ministers being convicted in the courts and I do not think that they are the kind of people we want in Parliament. I really do not. Does the Minister want these sorts of people in the Dáil or Seanad? Do we want as Members people who have been convicted of corrupt offences? On matters such as the Constitution and democracy, the argument holds equally well for all the other people who are excluded, it does not operate only for politicians. This Bill, as it stands, is making a special case for politicians. I would also be interested to know what the Fianna Fáil position is and whether it will support this amendment. I put it to my friends and colleagues in Fianna Fáil that they, like everyone else, will be against corruption in Irish public life. Do they want a situation where we are institutionalising it and allow politicians alone to be excluded from the penalties in this legislation.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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This is a fascinating debate and is a fascinating issue to tease out. There is no doubting the sincerity with which Senator Boyhan and his colleagues have brought forward this amendment. Senator Boyhan is correct that in this House, he is someone who engages, who listens, seeks views and guidance and is not dogmatic in the views or proposals he puts forward.

Having listened to the debate, Sinn Féin also has concerns on the constitutionality of this amendment. We may not have to die on a ditch at this point and we can have the opportunity now to listen to the various views of Members and the Minister.

There is a fundamental issue where a culture has prevailed in the politics of this State where individuals are regarded as being all right and a bit of a rogue. There is also a broader question of how we as a society think that it is okay to elect someone to political office and public life in that case. I agree with much of what the Senator said. It is not the case that all the people who found themselves in those political positions have not been convicted, but they were in the political positions by dint of the people who elected them. Other legislation and aspects of our politics can be examined in the context of how we ensure that the controversies which have bedevilled this State, in terms of white collar crime and corruption, can be challenged in broader society. People would then know that there was some transparency around candidates' records or their pasts when they go forward. I think the Senator is on shaky ground on this and that there are questions regarding the constitutionality of such an amendment. At this stage, I am reluctant to support the amendment without having teased those matters out for a later stage. I am keen to hear the Minister's thoughts and those of colleagues.

I think it is reasonable that if any Member of the Oireachtas or the European Parliament was found guilty by a court of law under this Act that he or she would be disbarred from public office for ten years, and I would suggest that in some cases, ten years would not be enough. I just do not know if we are that far yet but maybe with the Minister's co-operation and that of others we can navigate a way through this which gets the right amendment and goes beyond rhetoric to also filter into society.

Photo of Martin ConwayMartin Conway (Fine Gael)
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Like Senator Ó Donnghaile, I am fascinated by this debate. I remember in the mid-1990s, having this very discussion as a politics student in UCD when the former Member of this House, Senator Maurice Manning, lectured in that Department. It was before any of what we know now had emerged, it would have been in 1993 or 1994. The first time I was ever in the Seanad Chamber was when I visited with my class with Maurice Manning.

Like Senator Ó Donnghaile, I am conflicted in that it is a very good amendment in what it seeks to achieve but one can also have miscarriages of justice. There could be a situation where people were convicted of corruption and ten years later, they might be able to prove their innocence and in the meantime, they had been denied the opportunity of seeking a mandate from their constituents.

Democracy is something that we in this country treasure. It is a difficult matter if the people choose to give someone a mandate. One might argue that a person having been convicted of corruption should be banned for life, but on the other hand, if one truly believes in democracy, the democratic process and universal suffrage, who am I to say that the person they vote for is not suitable? I might believe that but the people who vote for this person may not agree. Sometimes we have to accept the will of the people. On Friday week, whatever the result, we as politicians will respect and accept the will of the people.

A better way to deal with this issue would be for the people who abhor corruption to put candidates up against people who have been found to have been corrupt and for the political system not to select candidates who are found to be corrupt. There is nothing to stop people from standing as an Independent but they should not stand as a candidate from a registered political party.

I would be interested in the Minister's thoughts on this.The motivation behind the amendment is 100% on the ball, but we have to consider the democratic process, the secrecy of the ballot box, the notion of respecting democracy and ultimately accepting - not necessarily respecting - a mandate.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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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.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I have heard what the Minister has said and I know the dilemma he faces. I asked him about constitutional issues and if he had the Attorney General's advice he might share that with us. He did not refer to the Attorney General in his response, which is fair enough. I do not expect him to tell us things he cannot tell us; he is constrained in what he can say here. However, everyone has to be held to account equally before the law whether they are citizens or politicians - I do not wish to draw any distinction between them.

I am somewhat disappointed that so few Members are present; they may have other business to attend to. I have heard what some of the Senators have said. It is a sensitive issue and needs those from all parties and none to look at it, but the current situation is not good enough.

I draw Members attention to the Oireachtas Library and Research Service digest on the Criminal Justice (Corruption Offences) Bill 2017. The team in the Oireachtas Library and Research Service do a great job. I do not know how many people use them, but I use them every day. I rely on their independent validation and scrutiny of legislation. It is a real tool to assist us in our work.

An appendix at the end of the digest draws attention to the international anti-corruption conventions, the United Nations Convention against Corruption, the Council of Europe Conventions on Corruption, Civil Law Convention on Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and a range of others. It deals with the requirements in the conventions we have signed up to.

When reading the digest, I wondered if we have forgotten about the recommendations from the report of the Mahon tribunal. Have we learned anything from that tribunal? Have we studied all the politicians who were hauled before that tribunal? I accept there were ramifications for some and others for various reasons got off. There were reviews and subsequently other decisions were made. We spent a lot of money and saw many politicians appear before the Mahon tribunal over irregularities.

Are these people suitable to be in public office? The Minister is telling me it is acceptable to allow them to run in a general election and the people will know. The people do not know a lot of things about a lot of politicians - including some who are in here. They do not necessarily need to know. There are people who have a considerable amount of money and can well afford to fund very successful advertising and propaganda campaigns to promote themselves. All this gets a bit lost. There is an old expression that this morning's newspaper wraps tonight's chips. If a year or two pass between an offence and an election, people can forget.They are hooked in by promises. I am not sure we are sending out the right message. I started my contribution by saying members of the public are held equal before the law and I mentioned that politicians could not be above the law. That is what the perception will be. That is what I am taking away from it. The Mahon tribunal discussed it. We know what international best practice is. I understand the Minister's dilemma and if he is telling me there are constitutional problems, we need to consider amending the Constitution. If the Minister is stating we are constrained by the Constitution and if the Constitution is not serving us well, perhaps that is another constitutional amendment that should be on the list of proposals the Government might consider putting to the people. I am not prepared to accept as a Member of the House, however, what the Minister proposes in this Bill. If the Government comes back and says there is an anomaly or problem and that we are constrained by the Constitution, that is fair enough. If it is the case, however, let us do something about it. Let us identify it as a difficulty and do something.

I came to the House today to decide to call a vote on this but I am not going to. I have heard what the Minister has said and I have heard the Senators who have spoken. However, I ask that we come together. This is an appeal to the House and to the Dáil. I ask that we look at this again on the next Stage and come up with something better than this. This does not go far enough in my view but, ultimately, that is a matter for Members to decide. The Members here will debate this issue in the coming days in the media. I have no doubt about that. Ultimately, we will have to make our own cases and say where we stand on this issue. I will continue to be active on this. I will take it to Government and to others. I will put pen to paper this very day and write to a number of people, including the Taoiseach, to ask that this particular matter be given a focus. As I understand it and having regard to what the Minister has said today, this does not go far enough. Every Member of the Oireachtas of all parties and none must address this issue. We must be frank and honest and put appropriate legislation in place. Therefore, I ask the Minister to reflect on this as he said he would with the previous amendment and bring this back on Report Stage to see what can be done. In the meantime, I make the commitment that I will not be found wanting in lobbying and engaging with all political groupings in the Houses and in government to see if we can revisit this particular issue.

Photo of David NorrisDavid Norris (Independent)
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I am interested in the fact that the Minister quoted the Constitution and referred to incapacity by law. This covers our amendment. There is clearly an incapacity by law where somebody has been judged by a court to have no moral compass whatever. One rotten apple can spoil a whole barrel. Do we really want people without a moral compass in Seanad Éireann or Dáil Éireann? I will go a little further. I understand, albeit the Minister may be able to clarify the point, that people convicted of murder can stand for Parliament. People convicted of child sexual abuse can stand for Parliament. I do not think they should be able to either. They should be excluded from the political process and that should be part of the attitude we take to these very serious offences. Do we want murderers and child sex abusers to have this capacity? I am usually pretty left wing but on this I am fairly right wing. I would also change "may" to "shall". The court should impose this sanction on someone convicted of corruption. I ask the Minister to think again and to reflect further on the matter, on the basis that incapacity by law can also be interpreted to include someone with no moral compass whatever and who has been so found by a court of law.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I am happy to reflect further along the lines Senator Boyhan indicates. However, I am very much constrained by the Constitution. I am not of the view that this is a matter that should be put to the people by way of an early constitutional referendum. The programme for Government includes a full schedule of referendums and I would rather not introduce a new one into the public arena at this stage on this issue. With that in mind, I am constrained by the current constitutional position. However, I am keen to see what further reflection by myself, my officials, my legal advisers and the Office of the Attorney General might produce with a view to allaying the concerns of Senator Boyhan and others.

I am concerned, however, by any suggestion on the part of elected Members to formulate groups of persons who would be ineligible for membership of Parliament and which could be expanded and developed by way of a majority vote in the Houses at any future time. I would not subscribe to that. It is not a matter for us. I believe firmly that we should leave the issue of penalties entirely in the hands of the independent Judiciary. Introducing legislation here which might exclude murderers and sex offenders today could extend to any person or group in future. That might very well strike at the heart of our democracy. I would certainly caution against that. I understand that Senator Boyhan is disposed to withdraw the amendment. While I will give the matter further consideration, I am constrained by the Constitution and will come back to the Seanad within that framework.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I have heard what the Minister has said. I want to be constructive. One gets things done when one is constructive. It is as simple as that. However, it is important to look back at the recommendations in the Mahon report, some of which the Minister is addressing in his justice portfolio and some of which are being addressed by the Minister for Housing, Planning and Local Government, Deputy Eoghan Murphy, who is, to be fair, doing a great deal on the planning side. Hopefully, all of the Mahon recommendations will be implemented. One of the matters agreed under the programme for Government is to implement those recommendations in full. In fairness, great progress has been made by both Departments, which I acknowledge.

The Minister put a nail on something here today. He identified that he is constrained by the constitutionality around all of this and I accept that. I understand the separation of powers and fully acknowledge and respect all that goes with it. However, if it is necessary to have a constitutional referendum to root out the potential contamination of having such people coming into political life, it would be a good one. It will be a topical question and one in respect of which I will hone my skills in the coming weeks. I will advocate on this. If the advice is that there is a constitutional impediment in this regard, I will go on a crusade on this matter and will contribute to the debate in the public domain. I will orchestrate people to at least have a debate. Debate is always a healthy thing in democracy.

The Minister has told the House today that there are constitutional constraints and issues around this. I respect and acknowledge that fully. The Minister is a lawyer and has vast experience in this area. I acknowledge and respect that too. I thank the Members who have contributed to this debate, which has been a positive one. While there have been very few Senators here to engage in it, the debate has been very positive. Hopefully, we can meet and chat with the Minister's officials, with his support, before the next Stage to see what can be achieved. I acknowledge the Minister's contribution and am happy to withdraw the amendment based on the case he has made.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I will make two final points very briefly. I do not want a misunderstanding to emanate from the House today. I state again that what we have under the Bill is a penalty of forfeiture of office. It will be possible for the courts to order that someone forfeit his or her seat in Parliament as a result or consequence of wrongdoing.That is, again, a consequence of the legislation we are bringing forward after the Mahon tribunal. Senator Boyhan was right to refer to the Mahon tribunal, but the very essence of this legislation is as a direct result of its recommendations, with at least eight recommendations being provided for in the legislation.

I assure Senators that extensive consultation has taken place within the Department and involving the Department of Housing, Planning and Local Government. Senators are aware that Department has responsibility for electoral law and, ultimately, it was a policy decision to apply the exclusion at 17(4)(c) to all elected offices for reasons of consistency. We will come back to this at a later stage, and I acknowledge the withdrawal of the amendment.

Amendment, by leave, withdrawn.

Photo of David NorrisDavid Norris (Independent)
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I will not move amendment No. 3 because it is a nonsense. There was confusion between my office and the Bills Office, and what is down as an amendment is complete nonsense.

Amendment No. 3 not moved.

Section 17 agreed to.

Sections 18 to 34, inclusive, agreed to.

Schedules 1 and 2 agreed to.

Title agreed to.

Bill reported without amendment.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I thank colleagues for their co-operation in dealing with Committee Stage and I thank the Minister, Deputy Flanagan. When is it proposed to take Report Stage?

Photo of Martin ConwayMartin Conway (Fine Gael)
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Next Tuesday.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Is that agreed? Agreed.

Report Stage ordered for Tuesday, 22 May 2018.