Seanad Éireann debate -
Friday, 26 Jul 1996

Vol. 148 No. 13

Disclosure Of Certain Information for Taxation and Other Purposes Bill, 1996: Committee and Final Stages.

NEW SECTION.

Ms Honan

I move amendment No. 1:

In page 3, before section 1, to insert the following new section:

"1.—Where a ‘relevant person', within the meaning of section 63A of the Criminal Justice Act, 1994 (as inserted by this Act), furnishes a certificate to the Revenue Commissioners that he has reason to suspect that any person to whom a certificate has been issued under the provisions of the Waiver of Certain Taxes, Interest and Penalties Act, 1993 may have made a false declaration under section 2(3)(iv) of that Act, the Revenue Commissioners shall, notwithstanding any provision of that Act, furnish to the relevant person such particulars, documents and information as the relevant person may require to assist in determining whether the declaration in question was false.".

I propose this amendment because for someone to have their tax amnesty affairs reopened should not require proof of the falsity of the declaration as a precondition but should require that where somebody, who is a relevant person within the meaning of section 1 of this Bill, certifies to the Revenue Commissioners that he or she has grounds to believe or reasonable grounds to suspect that the funds to which a certificate relates were illegally obtained, he or she should be able to break the secrecy provisions of the amnesty with a view not to sustaining the matter by proof but investigating whether it is true. This is of major concern to my party. As the Minister said, Deputy Michael McDowell raised this matter yesterday in the other House.

I am pleased the Revenue Commissioners and the Department of Finance are satisfied they have the power under the amnesty legislation to reopen files and that they do not need the burden of proof which we believed was necessary. Nobody accepted that criminals should be allowed to launder their assets and legitimise their position through the tax amnesty. I was also pleased to hear that when the bureau is placed on a statutory basis we will have an opportunity to discuss it. I accept the Minister's commitment to amend the legislation if necessary. On that basis, I will not press the amendment.

Amendment, by leave, withdrawn.

Section 1 agreed to.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mr. Enright

Section 2 deals with accountants and solicitors. I listened carefully to the Minister of State's reply on Second Stage and I fully endorse her efforts in relation to the Bill. I supported many measures regarding the right to silence and changes to the bail laws when it was not popular to do so. With the greatest respect, I have reservations about section 2. I appreciate the serious challenges faced by the Government, the Garda Síochána and other State agencies involved in tackling crime and I completely oppose the hype and high profile given by the media to many criminals in the past.

Much of what we are attempting to do is important and there has not been any knee jerk reaction. The Government has been very careful and prudent in its actions. However, this area of the legislation should be examined carefully. I read the Minister for Finance's Second Stage speech on this issue. I accept that he is an accountant and has much interest in this matter — the Minister of State also has a professional interest in it. In the past, I have had cases of murder, rape, armed robbery, etc. Under our system of justice, and even under the British system at its worst, confidentiality is maintained between solicitor and client at all times. We should not allow drug barons and other criminals to push us into changing the privilege that has existed between solicitors, accountants and auctioneers and their clients.

As a person who has been involved in the area of law, I have great reservations about this issue and I hope the Minister of State will examine it carefully. I accept the right of a journalist to have privilege regarding information they receive and also their right not to disclose their sources. The Minister of State will be aware of a recent European Court decision regarding the media's right to privilege. A situation will develop where solicitors representing someone charged with a serious offence will be obliged to walk a narrow line if they have to disclose information relating to money laundering or proceeds that are lodged with them. It is a difficult and dangerous area.

I ask the Minister of State to be prudent and careful in this area of the legislation. I do not say that as a shrinking violet because I have made unpopular statements on the effort that is required to tackle organised crime. The Revenue Commissioners have extensive powers under legislation introduced by Deputy Bertie Ahern when he was Minister for Finance, to enter properties, seize books and retain them indefinitely. When a person purchases a property, the solicitor acting on his or her behalf must submit their details and information on the vendor must also be submitted. A vast amount of information is required, including PRSI numbers, names and addresses, where people reside and even their relationships and families. We are entering into something which will cause problems in the long term.

We have one of the finest Attorneys General and I pay a warm tribute to him and the Government for their work on this, but we must be prudent and cautious. Everything needs change and that is good. However, there are some areas where change may not be advisable and this is one of those instances. I accept that the Revenue Commissioners have experienced intense intimidation and threats and many brave people working there fulfilled their duties in spite of that. There are sufficient powers without entering into an area where, as the Minister said, there is privilege in regard to legal advice. When you start dividing and separating it, you enter uncharted areas. If someone who is charged with some serious offence or is about to be arrested comes to me, I will feel hamstrung in advising them.

I am delighted that, under a later section, the Revenue Commissioners are granted privileges. They need them because, in the past, Revenue Commissioners and social welfare officers had to give their names and addresses and some were subjected to horrendous abuse and intimidation. I am glad that gardaí will now accompany and protect them. In this instance, however, if a solicitor has already been in consultation with a client and the information is suddenly disclosed, the solicitor has no such anonymity to hide behind.

I have never disowned anything I ever did or said and do not intend to do so in the future. However, we are entering uncharted waters and I ask the Government not to go a step too far. We in this House and those in State agencies cannot allow these people to push us a step too far because they in their own way are attempting to break the system. We must ensure the system we have is carefully preserved because it has stood the test of time under different administrations here. It is the one used in Britain and across Europe. We must be careful and prudent.

Mr. Roche

I accept absolutely the sensitivity of the issue of confidentiality outside of the client relationship and the profession and the issue of privilege but would caution the Minister in the opposite direction. Professional bodies in this country have far too willingly accepted their privileged position and, unfortunately, have allowed a tiny minority of no more than four or five clients in Ireland to behave in a way which is profoundly against the public interest. I do not accept that nor do I accept that privilege in any profession should be a shield for criminal and antisocial behaviour.

I am surprised that negotiations with the various professional bodies have not been completed at this stage. I share the Minister's view that the 99.999 per cent of solicitors, accountants, auctioneers and other professionals in Ireland who are law abiding people have nothing to fear from this legislation. The purpose is not to destroy the centuries old concept of privilege but to prevent it being abused. That is the point the Minister made and, if I interpreted it correctly, I agree with her and do not think there is any danger or that we need worry about it.

Minister of State at the Department of Justice (Ms Burton)

Senator Enright is a solicitor and an honourable member of that profession. The Government is consulting the professional bodies on the important question of privilege.

We are facing a new level of organised crime and racketeering and we need new and appropriate mechanisms to deal with it. We are talking about laundering assets and putting the proceeds of crime, particularly of the drugs trade, into legitimate property or businesses. In order to buy property or invest in a company, drug barons must use professionals to launder the money and legitimise their cash holdings in property or another asset. We will need specific and special powers to deal with the small percentage of professional advisers who may be thus involved.

We use the term "enabling" in relation to alcoholism — people, without necessarily meaning to, enable others to become alcoholics and to continue drinking. A small percentage of professional advisers is prepared to enable drug barons. This legislation may restrict somewhat the traditional rights and entitlements of privilege enjoyed by legitimate professional advisers but it is necessary in the interest of choking off money laundering and the availability of drugs money to be put into legitimate businesses. This is a fundamental aspect of money laundering.

The example of Al Capone is apposite. Law enforcement agencies in the United States have found that while it might not be possible to prove certain matters on the criminal side, it may be possible to attack assets. For many professional criminals it is a far worse penalty to have their money taken away from them than to serve a limited period of time in jail. In this legislation we are talking not just about impoverishing the criminal but also their families and associates. What makes them big guys and gives them status in their communities is when they drive down the street in big cars, speak into mobile telephones and wear designer clothes. We will take all that away from them and prevent them putting their money into legitimate accounts in building societies or into property and businesses. In order to do so we must modify some of our traditional approaches to ensure that we have the weapons we need.

The concept of privilege with regard to legal advice is protected under the Constitution and we are very aware of that. It will be necessary to safeguard that. In this Bill we are giving the appropriate weapons to the new bureau, the Garda and other bodies to ensure that they will have the power to act against the small percentage of professionals who are enablers of money laundering.

Mr. Enright

I supported the restriction on the right to silence. I am in favour of changing the bail laws. I went so far as to say that drug offenders should be sent to and detained on Spike Island. I also said I would turn Spike Island into a type of Alcatraz where those who had perpetrated such horrendous crimes, abused people of all age groups and wreaked havoc on society would be committed.

I am certain that we will tackle and beat the drug barons. We will certainly put them behind bars and out of business. When that is done, however, the laws we pass now will remain on the Statute Book. If, for example, a person buys a property with £400,000, the Revenue Commissioners will be aware of that transaction and will be entitled to get information from the purchaser. If that person does not have the information the Revenue Commissioners are entitled to see his or her books and details so they can find out exactly what he or she has done. These are considerable powers. I am in favour of granting whatever additional powers are necessary, but there will be considerable constitutional difficulties on foot of this provision which I am anxious to avoid. The Minister is doing so much that is correct in this regard that I would prefer her to be prudent and careful in this area.

Senator Roche is correct and I will not contradict him. There are good doctors, solicitors and politicians, but a certain percentage of people in every walk of life act, not just on the borderlines of the law, but outside the law. Some people do not conduct themselves in a proper manner. However, we cannot make great changes simply because one or two people cause problems and destroy the good reputation built up by other members of the profession. Legal professional privilege has existed here and in Britain through the most difficult of times. In Britain, even during the worst times and where they have had terrorist offences, no effort has ever been made to break the priviliged relationship between solicitor and client. The same holds true for other European countries.

What I am saying is not old fashioned. This change will have long term repercussions and affect many people. I do not consider our discussion today amusing. We should be very careful. I am very uneasy and concerned at what is happening.

Question put and agreed to.

Sections 3 to 11, inclusive, agreed to.

SECTION 12.

Question proposed: "That section 12 stand part of the Bill."

Mr. Roche

I welcome the provisions of anonymity in section 12. I would like clarification of a phrase used in the Bill. It states that the officer may give evidence in the sight and hearing of a judge and in the hearing only of anybody else. I presume that means the official will give evidence behind a screen.

Ms Burton

Yes.

Mr. Roche

While the Bill provides for anonymity, which I greatly welcome, I am cautious about it. Ireland is a small country and it would be all too easy for people to become aware of the civil servant who gave evidence. Will there be a sanction against anybody who would seek to breach that provision?

Mr. Burke

While it might not be relevant to the section, I thank the Minister of State for clarifying the position in relation to the tax amnesty, which I raised on Second Stage as well as issues relating to jury members. While it might not be in keeping with this Bill, will the Minister of State bring to the attention of the Minister for Justice and the Government that members of juries——

An Leas-Chathaoirleach

We are dealing with section 12.

Mr. Burke

——should be entitled to protection and that their names and addresses should be confidential? They act in the best interests of the community and do their public duty.

Mr. Enright

I welcome the privilege provided under section 12. It is essential that privilege is provided for Revenue officials. I am aware of the problems many of them encounter when they go into areas and the threats and intimidation under which they are obliged to carry out their duties. That problem also arises in relation to court cases. Some people in the media publish the name of those charged with an offence, but are also on occasion anxious to publish the name of the official. It is one of the problems faced by civil servants since they are no longer anonymous and can create difficulties in discharging their duties. I agree with Senator Roche that some effort should be made to ensure that those who publish the names or photographs of officials are sanctioned.

Ms Burton

In relation to the query raised by Senator Roche, the matter will be considered further for the Criminal Assets Bureau Bill, which contains a similar provision. There are also certain provisions to protect officials in that Bill. I undertake to come back to the Senator on that issue, which I thank him for raising. I will bring the point made in relation to juries to the attention of the Minister for Justice. I also thank Senator Enright for the points he raised.

Question put and agreed to.

SECTION 13.

An Leas-Chathaoirleach

Amendments Nos. 3, 4 and 5 are related to amendment No. 2 and all may be discussed together.

Mr. Roche

I move amendment No. 2:

In page 11, between lines 17 and 18, to insert the following new paragraph:

"( ) a person engaged in the business of bookmaking under the Betting Act, 1931;".

Notwithstanding what the Minister of State said, which I accept, I still believe it would be better if we mentioned the principal professions with which we are concerned here — not in the sense of fingering them or making an accusation but because it would give power to the Bill. It would be better to do it that way rather than by ministerial order. In a sense, mentioning the professions puts a greater emphasis on the responsibility which lies on those and other professions to observe this provision. The list includes auctioneers, accountants, estate agents, solicitors and bookmakers. That is not an exclusive list but it does put a very special responsibility on those persons. It would be prudent of the Minister of State to accept the amendment.

Ms Burton

We had a very good debate earlier about the concept of privilege, particularly in relation to the legal profession. As I said, we have undertaken to consult the professional bodies. The powers are there for the Minister to extend it by order and it is our intention to do that after the appropriate consultation, particularly in the context of privilege. Having heard Senator Enright at length, it is necessary to get that constitutional point right and it is appropriate to consult those bodies. As I said, I confidently expect that, unlike discussions which took place last year with some of those bodies, this year accountants and lawyers will endorse and support this legislation while, at the same time, guarding due constitutional privilege in relation to privileged relationships with clients where these exist. I appreciate the Senator's concerns but if he could accept what I said it will be included after the appropriate consultations to address the constitutional point correctly. The Senator said earlier that sometimes one entered unknown territory regarding how judges would ultimately deal with Acts. It is important to address any constitutional queries which arise, such as those which Senator Enright raised.

Mr. Roche

These are fairly tough skinned individuals and I do not think that solicitors, accountants, auctioneers or, indeed, the bookmakers — to talk about a really tough crowd — would be unduly worried by any comments we make.

Mr. Daly

They will not drop dead with shock.

Mr. Roche

I accept what the Minister said and I will not be pushing the amendments to a vote, but are consultations with all those professions under way?

Ms Burton

Yes. I do not want to use the term "abortive" but there were consultations last year. At that stage they were exercised about the possibility of having to come forward in relation to tax evasion. This specifically relates to money laundering and criminal activity, particularly in the context of the drugs trade. The professions are self-regulating on the basis that they are responsible. Given the kind of crisis facing society I expect them to fully and enthusiastically live up to their serious responsibilities. I am confident that, as Senator Enright said, the vast majority of professional advisers will be happy to co-operate with the Garda Síochána, the new agency or with any other agency in the fight against drugs and organised crime.

Mr. Enright

I have great reservations about Senator Roche's amendments. It would not be wise to accept them at this stage, particularly as discussions are ongoing. If the laws available to the State and to the Revenue had been utilised in the past some of this legislation would not be necessary. However, we have arrived at a point where all these efforts are needed.

Mr. Roche

I do not want to make the Minister's life difficult, in fact, I want to strengthen her hand. Some of these professions, to use the Minister's own term, are far from "shrinking violets". Last year, when other Ministers approached these professions, in a way that would have been generally accepted by the public, progress was not made because these are fairly tough professions. They were not particularly forthcoming last year. I do not believe that there are ongoing discussions with the bookmakers at present because there is an oversight in the Bill. While I will not call for a vote I would like my reservations to be recorded, not to be difficult but simply to put it to these professions that if they adopt an obstructive position with the Government in this matter they will not get solace from the Opposition benches.

Mr. Enright

My opposition relates to the point of privilege in amendment No. 5.

Mr. Roche

In other words we will throw the rest of them to the wolves.

Mr. Enright

Not quite. There is a difference and I have made my point.

Mr. Roche

The Senator made the point well.

Amendment put and declared lost.

Mr. Roche

I move amendment No. 3:

In page 11, between lines 17 and 18, to insert the following new paragraph:

"( ) a person licensed to carry on the business of Auctioneer under the Auctioneers and House Agents Act, 1947;".

Amendment put and declared lost.

Mr. Roche

I move amendment No. 4:

In page 11, between lines 17 and 18, to insert the following new paragraph:

"( ) a person operating as an accountant under the Institute of Chartered Accountants (Adoption of Charter) Order, 1941;".

Amendment put and declared lost.

Mr. Roche

I move amendment No. 5:

In page 11, between lines 17 and 18, to insert the following new paragraph:

"( ) a person qualified to practise under the Solicitors Act, 1954;".

Amendment put and declared lost.

Section 13 agreed to.

Sections 14 and 15 agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Roche

I commend the Minister on this legislation, notwithstanding that I pressed amendments. I did so for the best of reasons. I want to strengthen the hands of the Government in these "bodies". I also commend not just this legislation but the Ministers who produced the associated Bills and, of course, Deputy O'Donoghue. We started a very important process here and in the other House in the last two days and I hope it meets with success. We are fighting a war against cunning, ruthless individuals who have a vast amount of money and we must be equally ruthless.

I always uphold the civil liberties of the individual but some of these people are abusing their constitutional freedoms in a way which is undermining all our civil liberties. I commend the Bill and the Minister for introducing it and I hope it is successful.

Mr. Burke

I agree with Senator Roche. I thank all the relevant Ministers and Deputy O'Donoghue for the various Bills that have passed through both Houses in the last two days. As Senator Roche said, we are fighting a war against crime and we must do whatever we can in that regard. I thank the Minister for coming here at short notice. She has a great knowledge of this Bill and she outlined in great detail its many aspects.

Mr. Norris

Although I did not contribute on this Bill, I contributed on the earlier related Bill. I first commend the Minister, whose performance I watched on my monitor when working in my office. Since the passage of the earlier Bill, during the course of which I remarked upon the fact and regretted that I had not attended the briefing session in Buswell's Hotel held by various people in relation to the drugs issue, I discussed this matter with some of my colleagues. I discovered that as far as I can make out, no Member of the Seanad received such an invitation. Members of the Dáil were invited.

In fairness, one should be permitted to state this because it would be unfortunate if it was left simply with my regret that I had inadvertently not turned up, implicating the entire House in a discourtesy to this group of people. In fact, if there is discourtesy it lies with the other party. I hope the Minister does not mind this because it is important that we should not be left with the impression that no Member of the Seanad turned up to a briefing. No Member of the Seanad was invited and that is a pity. I hope that in future if these groups release a statement to the effect that they invited both Houses and only 50 out of over 200 turned up, they ensure that invitations arrive at the addresses of Members of the Seanad.

Mr. Calnan

I compliment the Minister on the way she handled the Bill. It is nice that everybody is in agreement with this Bill because it concerns the well-being of our young people in particular. The lives and futures of young people are at stake because of the blackguarding going on and it is appropriate that this House should pass this Bill speedily to give the various State officials the powers to bring those responsible to justice. They are committing a major crime against our young people and society.

Ms Honan

I also compliment the Minister on ensuring the passage of this Bill, the way she dealt with the queries and reservations and her commitments. I support what the Minister said earlier that the legislation passed by both Houses in the last two days deals with the supply side of the market, but that we must also deal with the demand side. The groups to which Senator Norris referred were very concerned with the demand side and the provision of education, sporting facilities and health care.

The Minister said that parents or anyone who has dealings with young people realise that all sectors of society are exposed to the scourge of drugs. All our young people, in rural areas or in cities, face the same temptations. The hopes and prospects of participating in society and gaining employment are very important. As the Minister said, the demand side of the equation must also be examined and addressed very quickly.

Minister of State at the Department of Justice (Ms Burton)

I thank Senators for their contributions and courtesy. I would like particularly to thank the officials of the Department of Finance, the Revenue Commissioners, the Department of Justice, the Garda and members of the working group who contributed their expertise and knowledge to the formulation of this Bill.

As I said earlier, this Bill clears the way for absolute sharing and pooling of information and for the Criminal Assets Bureau to bring together all our resources to fight the criminal. The money generated by the drugs trade is enormously significant. Like Senator Norris, every Member is conscious that the drugs trade is no protector of geography, class or anything else. It is pervasive throughout society. I did not have an opportunity to meet the parents yesterday because I was in the House, but many of them have suffered and were bewildered as to how their families got involved. That should serve as a warning to us all.

Although we are concentrating on the criminal aspects of the drugs trade this week, we are all aware that it is just one side of the picture. Equal attention needs to be given to deterring young people from getting involved in drugs and where, unfortunately they do, making appropriate treatment and support available to them and their families.

Question put and agreed to.