Dáil Éireann debate -
Thursday, 6 Jul 2023

Vol. 1041 No. 5

European Union Directive: Motion

Minister of State at the Department of Justice (Deputy James Browne)

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Directive of the European Parliament and of the Council on combating corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union and amending Directive (EU) 2017/1371 of the European Parliament and of the Council,

a copy of which was laid before Dáil Éireann on 30th May, 2023.

I thank the House for facilitating this motion. I welcome the opportunity to address the Dáil on Ireland's opt-in to a new EU proposal for a directive on combating corruption. Ireland has an option, provided for in Article 3.1 of Protocol 21 annexed to the Treaty of Lisbon, to opt into individual proposals in the area of freedom, security and justice. The protocol provides that Ireland has three months from the date a proposal is presented to the Council to notify the Presidency of the Council of its wish to take part in the negotiation, adoption and application of the measure. The three-month period for this proposal ends on 31 August.

The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas, so it has been necessary to bring this proposal to the Houses as swiftly as possible before they rise for the summer to meet this deadline. Ireland can also accept a proposal at any time after it has been adopted, but in such cases, Ireland will not have been in a position to vote on the final content of the proposal. It must also be noted that Ireland made a declaration appended to the Treaty of Lisbon of its intention to opt into measures in the area of freedom, security and justice to the maximum extent it deems possible.

On 3 May, the European Commission put forward several proposals to combat corruption, including a new directive combating corruption and a proposal to establish a dedicated Common Foreign and Security Policy, CFSP, sanctions regime to target serious acts of corruption worldwide. The aim of these proposals is to provide rules to better tackle corruption in the EU and allow better co-ordination of actions at national and EU levels.

As we are all aware, corruption negatively impacts society, individuals and businesses. It undermines democracy and the rule of law and allows organised crime, terrorism and other threats to safety and security to flourish. Corruption can increase inequality and reduce access to basic services. Corruption distorts markets, provides the wrong incentives, drives away investment and undermines innovation. This proposal by the European Commission recognises and responds to the serious damage corruption can cause. This directive will update the existing EU legal framework on combating corruption, with the aim of ensuring that all forms of corruption covered in the UN Convention Against Corruption are criminalised in all member states. The directive will also ensure that legal persons, such as companies and corporations, can be held responsible for such offences.

These new measures place a strong focus on prevention and creating a culture of integrity in which corruption is not tolerated. Member states will have to ensure that the public sector is held accountable to the highest standards. Member states will be obliged to adopt effective rules on open access to information of public interest, the disclosure and management of conflicts of interest in the public sector, the disclosure and verification of assets of public officials, and regulating the interaction between the private and the public sector.

The proposal will harmonise the definitions of criminal offences prosecuted as corruption to cover not only bribery but also misappropriation, trading in influence, abuse of functions, as well as obstruction of justice and illicit enrichment related to corruption offences. The proposal brings together public and private sector corruption in a single legal instrument.

The directive will also strengthen enforcement tools. It aims to provide effective, proportionate and dissuasive penalties for corruption offences and to address obstacles to effective investigations and prosecution, such as short statutes of limitation, opaque procedures for lifting immunity, and limited availability of resources, training and investigative tools.

The views of the Office of the Attorney General have been sought on this directive. The legal advices confirmed that there are no legal or constitutional obstacles to Ireland opting into this directive.

Naturally, given the importance of this issue, officials from the Department of Justice will continue to participate actively in the negotiations at working party meetings and engage with other Departments and agencies to ensure the final text of the directive works well for Ireland and the EU as a whole.

Tackling economic crime and corruption is a priority for the Government. The programme for Government of 2020 recognises the reputational and economic damage that corruption and white-collar crime can cause to the State and contains a commitment to introduce and implement new anti-fraud and anti-corruption measures.

A review of Ireland's existing measures against economic crime and corruption was completed in 2020. It is known as the Hamilton review. The review made a series of legislative, structural and resourcing recommendations to enhance enforcement and prevention. An all-of-government implementation plan to progress the recommendations in the Hamilton review was published in April 2021. This sets out 22 actions to enhance enforcement and prevention capacity in the criminal justice sphere.

Several actions have already been completed in full, and a number of others have been significantly advanced. To give just a few examples, the Criminal Procedure Act 2021, which was commenced in February 2022, provides for pretrial hearings to take place. This will improve trials for white-collar crimes, organised crime and other complex offences and will make it less likely juries are sent away during trial, making the court process faster and more efficient. To give another example, budgetary increases for the Office of the Director of Public Prosecutions have allowed for an increase in staffing and resources there, including five additional staff for the special financial crime unit in 2023.

One of the key recommendations in the Hamilton review was the establishment on a permanent basis of a cross-sectoral, partnership-based advisory council for economic crime and corruption to co-ordinate and lead the delivery of a whole-of-government approach to economic crime and corruption. This council was established last summer and has met quarterly since. The advisory council has started work on developing a multi-annual strategy to combat economic crime and corruption which the Minister for Justice will bring to Cabinet for approval. The work on the strategy will reflect and complement the developments at EU level. I commend this motion to the House.

Deputy Ruairí Ó Murchú

This is a timely motion, as we see the devastating effects of a scandal within a commercial State-sponsored body. I am fairly sure I do not have to name it, as I think everyone will realise I am talking about RTÉ. I do not want to prejudice the work of the relevant committees or wherever else this has to go. I will quote from the briefing note, which states the proposal "will impose an obligation on Member States to adopt effective rules on open access to information of public interest, the disclosure and management of conflicts of interests in the public sector, the disclosure and verification of assets of public officials, and regulating the interaction between the private and the public sector". This seems highly applicable in the case of RTÉ and other similar scandals. The sprawling and inconsistent governance arrangements of the public service, public sector, State and semi-State organisations, which we are seeing play out in real time, does not aid accountability. These contradictions are now being exposed in the case of RTÉ and in respect of the Irish Horseracing Regulatory Board. A 2022 Transparency International Ireland survey of public bodies found that while many were taking important steps towards combating the risks of corruption, bodies such as the Local Government Management Agency, LGMA, and An Bord Pleanála could do much more.

Those of us who are old enough may remember a Fine Gael policy document from 2011, which promised a massive reform and rationalisation of the public sector. Perhaps it will take another 12 years of the party being in government to give it sufficient time to act.

The briefing note we all received also states, "The urgency of the situation is clear from the fact that the Dáil will be rising on 13 July and the opt-in process has to be complete in advance of this." I accept that it took a while to form a Government at the start of the lifetime of this Dáil. Moreover, the Attorney General needs to be consulted and there are a number of other concerns but there does seem to be a problem with EU proposals related to white-collar crime being delayed, in some cases long enough that a European Court of Justice, ECJ, referral becomes a concern. We cannot afford to see this sort of lackadaisical attitude towards white-collar crime, as it has devastating effects on ordinary people's livelihoods, whether through anti-competitive practices or outright fraud and grift.

According to the International Monetary Fund, IMF, $2.6 trillion, or 5% of global GDP, is lost to corruption annually around the world. For this State, that figure would be in the order of €25 billion every year. Although we are more than likely at the lower end of the scale globally, every penny lost is one less that can be spent on schools or hospitals. White-collar crime is also the handmaiden of organised crime. Dirty money needs to be cleaned and this cannot be done without money laundering through so called "legitimate" institutions. This is where the white-collar world meets the world of the street dealer and debt enforcer.

Where this occurs, we inevitably see bribery of foreign officials and other such issues occur. For instance, in December 2022, Danske Bank pleaded guilty and agreed to a $2 billion fine in a case from the United States Department of Justice. This was only revealed after a whistleblower came forward to state that Danske Bank's anti-money laundering procedures were not sufficient, despite its law firm asserting that they were. It is interesting that Irish law now, after the implications of a court case, cannot impose strict liability on corporate bodies. There is almost a template wording used in several new items of legislation being introduced that affect bodies corporate states stating that it is a defence to show that proper procedures were put in place to combat the likelihood of an offence taking place. It will be interesting to see how this works out in practice. Would Danske Bank have been found guilty if proceedings were taken under Irish law? It seems unlikely.

To its credit, the Government has made some progress in combating white-collar crime. However, the pressure is now such that the Director of Public Prosecutions, DPP, in a letter to the Department of Public Expenditure, National Development Plan Delivery and Reform, has complained that it is not sufficiently resourced to tackle such cases. These cases are of course long and complex, and usually defence counsels are the best that money can buy. We cannot afford to allow the State to suffer from an inequality of arms. I ask the Minister of State to outline the position on how we resource the DPP in this regard.

The proposal itself seems positive. There are three major areas, as the Minister of State has outlined. The first is preventing corruption and building a culture of integrity, and contains the aforementioned obligation on member states with regard to conflicts of interest and so on. We have a culture of "cute hoorism", if I can use that term, whereby people are rewarded rather than condemned after getting away with something. It does not matter what you do as long as you do not get caught. That seems to be changing and obligations around awareness-raising are very important.

The second area is to obligate member states to have one legal Act for all corruption offences and sanctions. This is incredibly important, as current legislation is set out in a sprawling manner, across multiple Acts. A strengthening and consolidation is required and given that the Office of the Director of Corporate Enforcement has been reformed into the Corporate Enforcement Authority, we should see some areas where the law needs to be changed.

The final area is on ensuring effective investigations and prosecution of corruption. The DPP, the Garda and the enforcement authority are clearly the important bodies here, but there may be room for other entities to be introduced to assist, especially with specialist expertise.

To cut it short: we support these proposals. I am very grateful for the opportunity to discuss this matter. I think there will be a great deal of agreement across the House. Given the week that we have had, and some of the previous stories that have been dealt with in this particular domain, I believe it is of the utmost importance that we deal with white-collar crime and corruption, and that we leave as little room as possible for them to exist. We have good governance and we have the means of doing the business that needs to be done.

Deputy Cathal Berry

I very much welcome the opportunity to make some brief comments on this EU anti-corruption directive. I welcome it. Ireland has had its brushes with corruption in the past, which have held us back decades. To be fair, I think things are improving but we cannot let down our guard in the light of recent events. I would like to focus on prevention in particular. Prevention and deterrents are very important.

I agree with the emphasis on a public awareness campaign. It is not just a whole-of-government approach that is needed to tackle this but a whole-of-society one. There is corruption in clubs, villages and towns across the country and it needs to be stamped out wherever it exists.

There is also a focus on open access to information. This is where the freedom of information, FOI, process comes in. Any information that is of public interest should be readily accessible. The general data protection regulation, GDPR, is often used, sometimes for good reason and sometimes for reasons that are not so good. Much of the time it is used as an excuse not to give publicly necessary information. We need to look at that from an FOI perspective. More information relating to conflicts of interest, or potential conflicts, is also a good thing.

The second main focus is on having one legal framework - a one-stop shop, basically, for all these anti-corruption measures and offences. That is a very good idea so we can harmonise from a bribery point of view, from a misappropriation point of view and with regard to abusive trading practices.

The final aspect is the enforcement perspective and the resourcing of An Garda Síochána. I know the Minister of State is involved in this. It is important that we have the tools to enforce these policies. We can have all the laws we want but unless they can be enforced there is no point in having them in the first place.

There was mention of lifting privileges and immunity for people suspected of corruption. I am not sure what that would involve. Does it relate to diplomatic staff or foreign officials? If the Minister of State has further information on that, it would very much appreciated. I also agree with extending the statute of limitations. It does not matter how far we go back; corruption is corruption whether it took place two years ago or 22 years ago. We should have access to all the information needed to stamp it out and if it is uncovered, we should be able to prosecute where appropriate so people can be held accountable for their governance failures.

I welcome this directive. It is good in general, and I look forward to its swift implementation.

Deputy Thomas Pringle

I thank the Ceann Comhairle for the opportunity to speak on this EU directive on combating corruption. I welcome this proposal. It is very important and very timely given what has been going on with the RTÉ pay crisis over the past couple of weeks. We cannot underestimate the importance of public trust in the public broadcaster and now more than ever given the amount of disinformation the public is being bombarded with on a daily basis. It is vital that citizens have a place to go for factual and unbiased information, a place where they are guaranteed the truth. In this age of information, nothing is more important than the truth. When we all have different ideas and understandings of what is true, it can lead to societal breakdown. This is what has fuelled the rise of the right in recent years. Different ideas of what is true and what is fake have created divisions across the world and this has created a deep sense of mistrust and scepticism in every piece of information we are presented with. We have underestimated just how exhausting this is and just how much the recent revelations about RTÉ are going to add to the sense of distrust and wariness among the public. What is more upsetting is that RTÉ does not even take the immense responsibility it has seriously. Not only were its representatives dishonest in their dealings, they have since lied about the extent of these dealings, undermining both the Oireachtas and RTÉ in its role as a public broadcaster. It is absolutely outrageous and should not be tolerated.

In January, Ireland was ranked joint tenth in the global index measuring perceptions of public sector corruption. I have no doubt that, sadly, this will no longer be the case. This is something for all public sector institutions to reflect on. There is no doubt that the Irish people have been badly let down by this situation. It is for this reason that prevention of corruption is just as important as, if not more important than, addressing existing corruption. I am glad Article 3 of this proposal addresses this matter. It would require members to ensure that key preventative tools, such as access to information of public interest, effective rules for the disclosure and management of conflicts of interest in the public sector, effective rules for the disclosure and verification of assets of public officials and effective rules regulating the interaction between the private and public sector, are in place. It is vitally important that such rules are in place for the European Commission and EU representatives too.

One area of concern with the proposal is in regard to data protection. I echo the European Data Protection Supervisor's call to amend Article 3 of the proposal in order to establish a comprehensive legal basis under Union law for the processing of personal data that are necessary to prevent corruption, and to clearly define what categories of personal data and which categories of data subjects may be publicly disclosed as part of the measures for the prevention of corruption. It is important that the data rights of individuals are protected when addressing this. We need to strike a delicate balance between ensuring those rights and doing all we can to tackle corruption.

Trust in public institutions is invaluable. Addressing failings in integrity and serious breaches of ethical rules to promote public trust and manage the conduct of public officials is vital in shoring up that trust and strengthening it. That is vitally important.

Minister of State at the Department of Justice (Deputy James Browne)

I thank the Deputies for their contributions and for their generous support for this motion. I will address two particular points that were raised. One related to the GDPR. As has been said to me in the past, the GDPR is meant to be a guide rail, not a locked door. Sometimes people use it as a locked door and a reason for saying "No". It can be the bane of all politicians' lives when it is cited sometimes.

With regard to privileged immunity refers, this motion relates to a law for the entire European Union. I cannot think of any examples here in Ireland but, as I understand it, there are examples in other countries where people were perhaps given immunity from prosecution. What we are setting out here is that where immunity is given, there has to be a clear pathway to lifting that immunity in appropriate circumstances. It is perhaps an issue in other countries but it is important that, across the European Union, that protection is there so immunity can be lifted.

I thank the House for facilitating this motion and thank my colleagues for their support. As I mentioned in my opening remarks, corruption negatively impacts society, individuals and businesses. It undermines democracy and the rule of law and allows organised crime, terrorism and other threats to human safety and security to flourish. Corruption, by its nature, is difficult to quantify but even conservative estimates suggest that it could cost the European economy around €120 billion per year, which is an extraordinary figure. Corruption remains a key concern for people across the European Union. A Eurobarometer survey conducted this year found that seven in ten Europeans believed corruption was widespread in their country. Some 35% of companies in the European Union see corruption as a problem when doing business in their countries. I am very heartened by the fact that 92% of Irish companies surveyed said corruption was not a problem for their business. That is one of the highest levels in the European Union but nonetheless we can never rest on our laurels and clearly, 8% do believe it is a problem. All these figures show that more needs to be done at an EU level as well as at a national level.

We need to ensure all forms of corruption are criminalised in all member states so people can be held responsible for such offences and so those offences incur effective, proportionate and dissuasive penalties. All of this will be important in strengthening public trust in Government and institutions. Looking at Ireland's performance in an international context, the Transparency International corruption perception index ranked Ireland as the tenth least corrupt country in the world in 2022. This is an improvement on 2021, when we ranked 13th, and a big improvement on 2020, when we were ranked 20th, but I want us to continue to climb those rankings. Ireland has a very strong record but we can always do more.

Opting into this directive shows our ongoing commitment to tackling corruption in all its forms and co-operating with our EU and international partners to do so. Ireland opting into this proposal will ensure we are at the table with our European partners and can be involved in the detailed discussions. Opting in under Article 3 will allow Ireland to fully take part in the adoption and application of the proposed measure and to influence the content of the directive that is being agreed. Failing to opt in at this stage would weaken Ireland's ability to influence the evolution of this proposal. Not opting in under Article 3 would also present risks to Ireland's reputation and the perception of Ireland's commitment to tackling corruption at both a national and a European Union level. For all these reasons, I commend the motion to the House.

Question put and agreed to.