I ask members and visitors to switch off their mobile telephones as they interfere with the recording equipment. I thank colleagues for attending. I welcome the Minister for Justice and Equality, Deputy Charles Flanagan, and his officials. This meeting has been convened to consider Committee Stage of the Criminal Justice (Corruption Offences) Bill 2017. Before going into the detail of the Bill, does the Minister wish to make any opening remarks?
Criminal Justice (Corruption Offences) Bill 2017: Committee Stage
I have some remarks that I hope will be of benefit to the committee. I shall be introducing five amendments, and the Opposition has nine. There are a number of overlaps. Four of the Government amendments relate to a recent EU directive, the PIF directive, and the Long Title will be amended to note that. I am likely to have a small number of amendments on Report Stage. One is to give effect to Article 7 of the OECD convention on combating bribery and its details are being discussed with the Office of the Attorney General. I may also have a small number of technical amendments on Report Stage in the Dáil.
I acknowledge the support of the committee. I am happy to work with the Deputies to address concerns regarding this Bill.
We will proceed with the business in hand. The grouping list has been circulated among members. They will note that amendments Nos. 1 to 3, inclusive, are grouped. However, there are no amendments to section 1 of the Bill.
Amendments Nos. 1 and 2, in the name of Deputy Jim O'Callaghan, and No. 3, in the name of Deputy Donnchadh Ó Laoghaire, are grouped.
I move amendment No. 1:
In page 6, to delete lines 4 to 9 and substitute the following:
" "corruptly" includes acting in such a manner so as to secure an unlawful benefit, whether that benefit is personal or for another, and regardless as to whether such benefit is secured;".
The first amendment I put forward is to include a broader definition of the adverb "corruptly". The definition is satisfactory as it stands because it uses the word "includes". Sections 5 and 6 refer to an official or an individual corruptly doing something. People are aware that a court will use common sense to determine what "corruptly" means but we have gone out of our way to try to define it by stating it includes other meanings. The Minister's meaning in the Bill is satisfactory but I just sought to include a broader definition. I am not going to push the amendment to vote. I would be interested, however, if the Minister examined this again for Report Stage to ascertain whether a broader definition of the word "corruptly" could be included.
The second amendment seeks that, in page 7, we include in the definition of "Irish official" a person who is a councillor in a county council. Schedule 1, which refers to public bodies, defines a local authority. I would like to hear the Minister's view on whether he believes it should be expressly provided that an Irish official should also be a member of a local authority.
My amendment obviously overlaps with that of Deputy Jim O'Callaghan and would have more or less the same effect. There should be a specific reference to an elected official. That is important. Unfortunately, there have been examples of corruption in a number of local authority areas so we need to be watchful. It is important to include the definition. I support the intent behind Deputy O'Callaghan's amendment to strengthen the definition of "corruptly".
I thank Deputies O'Callaghan and Ó Laoghaire for their amendments, Nos. 1, 2 and 3. Amendment No. 1 seeks to redefine the word "corruptly". The definition of "corruptly" contained in the Bill is the same as the definition contained in the Prevention of Corruption Act 1906, as inserted by section 2 of the Prevention of Corruption (Amendment) Act 2010. In developing this Bill, my officials and legal advisers considered a number of alternative approaches but concluded they were not in a position to change from what is a tried and tested definition. The concept of "corruptly" is central to the construction of the offences in the Bill. It was given careful consideration.
Deputy O'Callaghan's proposed wording defines "corruptly" as including acting in such a manner so as to secure an unlawful benefit. There is no explanation of what constitutes an unlawful benefit and it appears that this would place an additional burden on the prosecution to prove that the benefit was indeed unlawful. It also somewhat replicates the language in the offences themselves and this could create uncertainty, if not confusion.
The definition contained in the Bill is one that we know works. We can look to successful prosecutions in this regard. The definition has not given rise to any legal challenges in the courts. It is a concept that juries appear to understand. I ask Deputies to leave matters as they are on the basis of the definition being tried and tested.
Amendments Nos. 2 and 3 propose to insert an additional subcategory in the definition of an Irish official. As Deputy O'Callaghan has implied, local authority members are already included in the definition of Irish official in the legislation as currently drafted.
Paragraph (j) of the definition of "Irish official" – page 7, line 23 - provides that “an officer, director, employee or member of an Irish public body” is deemed to be an Irish official for the purpose of the Bill. Again, members will be aware that the offices that come within the definition of Irish public bodies include local authorities.
I think most of us around the table are former members of local authorities and Irish public bodies. Again, I would say we are sufficiently covered. I ask Deputies to consider that as being appropriate.
The Minister makes a valid point about amendment No. 1 when he refers to us needing a definition of "unlawful benefit". In light of what he said, as well as the importance of ensuring consistency with different legislation, I will withdraw that amendment. I may revisit it on Report Stage. On amendment No. 2 and a member of a local authority being an Irish official, it is covered in paragraph (j) but we must go back to the Schedule of Irish public bodies and the fact that a councillor is very much an Irish official. Perhaps the Minister will give consideration to putting it in as separate entity when the Bill comes back on Report Stage.
I echo that view. In the paragraph (j) definition, namely,“an officer, director, employee or member of an Irish public body”, I suppose it fits under "member". However, I it could be more specific and we should return to it. I am curious as to whether there are specific references to elected members of local authorities in other comparable legislation. I must check that out.
Would any other member like to comment in respect of this grouping? Does the Minister have anything further to add?
No, but I have heard the Deputies and I will give the matter further consideration. At this point I am of the view that we should retain it in its current form. However, in view of what Deputies O'Callaghan and Ó Laoghaire have said, if we can agree that the Bill will be improved then I will certainly be happy to have a look.
Again, I need not remind members that once amendments have been addressed here, they have the right to resubmit on Report Stage.
Amendments Nos. 4, 5, 13 and 14 are related and may be discussed together.
I move amendment No. 4:
In page 9, to delete lines 1 and 2 and substitute the following:
“(a) corruptly requests,
(b) corruptly accepts or obtains, or
(c) corruptly agrees to accept,”.
These amendments are as a result of the recently agreed EU directive I mentioned at the outset. It is a directive on the fight against fraud to the Union’s financial interests. The purpose of amendments Nos. 4, 5, 13 and 14 is to deal with technical consequential matters arising from the requirement to transpose that directive. As this Bill is intended to consolidate and clarify the law in respect of corruption, it is important that the amendments to give effect to this directive are inserted into the Bill prior to its enactment.
Amendment No. 4 amends the offence of passive corruption to include the act of requesting a gift, consideration or advantage. The directive requires us to criminalise such behaviour and advice was sought on the issue. The Department was advised that it would be much clearer to include specific reference to requests, rather than rely on any common law interpretation that might be found. Amendment No. 5 is essentially making the same change to the trading in influence offence.
Amendment No. 13 inserts the corruption offences and related definitions from the Criminal Justice (Theft and Fraud Offences) Act 2001 into Schedule 2 to the Bill in order that they be repealed. International organisations such as the OECD have criticised Ireland in the past for having corruption offences in the main corruption legislation but also slightly differing corruption offences within the Criminal Justice (Theft and Fraud Offences) Act 2001. While we acknowledged the need for consistency in the Statute Book, it would have been imprudent to repeal the corruption offences in the 2001 Act until the new EU directive had been agreed. I am now satisfied that the offences in the 2001 Act can be safely repealed.
Amendment No. 14 inserts into the Long Title a reference to Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, as this Bill will give partial effect to that directive.
I support all four amendments put forward by the Minister.
Likewise, I support all the amendments.
I support them also. I note this comprises partial implementation of the directive. What else does the directive involve and when will that be-----
Separate legislation will be needed for the balance and will be brought forward in due course.
I move amendment No. 5:
In page 9, to delete lines 17 and 18 and substitute the following:
“(a) corruptly requests,
(b) corruptly accepts or obtains, or
(c) corruptly agrees to accept,”.
Amendments Nos. 6 and 7 are related and may be discussed together.
I move amendment No. 6:
In page 10, between lines 6 and 7, to insert the following:
“9. Where a document purports to have been created by a person it shall be presumed, unless the contrary is shown, that the document was created by that person and that any statement contained therein, unless the document expressly attributes its making to some other person, was made by that person.”.
Deputy O'Callaghan made a point on Second Stage that I think was correct and proper. I refer to the fact that in implementing this legislation and ensuring convictions occur where they should occur, presumptions are of considerable aid to the courts. This amendment relates to "where a document purports to have been created by a person it shall be presumed, unless the contrary is shown, that the document was created by that person and that any statement contained therein, unless the document expressly attributes its making to some other person, was made by that person”. I think that is a reasonable presumption to put in place. Deputy O'Callaghan has a similar and more detailed amendment. As it applies to a different section, I would be interested in Deputy O'Callaghan's view as to how the two interact and whether they are complementary. They may be but in any event, that is the intention of this amendment. It is to strengthen the hand of the court in dealing with people who may have committed an offence under this Bill, particularly as it relates to false documents.
I have a similar amendment which seeks to introduce a presumption as well. However, it is a broader presumption than Deputy Ó Laoghaire's, although the first part is the same.
My draft is taken from the Taxes Consolidation Act. When people are being prosecuted for tax offences, presumptions are used and are available to prosecutors. This makes prosecutions easier. If something is just a presumption, that does not mean it cannot be rebutted. This is something we need to include in corruption legislation if we want to make it effective and if we want to make the job of prosecutors slightly easier. These offences are very difficult to prosecute. I would be interested to hear what the Minister has to say. Maybe he will look at this in advance of Report Stage. If provision for presumptions is included in the taxes Acts for prosecutions of taxes offences, I do not see why we would not include it in this legislation.
Both of these amendments relate to presumptions, as their proposers have said. Amendment No. 6, in the name of Deputy Ó Laoghaire, is much the same as the first of the three new presumptions proposed by Deputy O’Callaghan in amendment No. 7, although it is proposed that they will go into different places in the Bill and will relate to different offences.
Similar presumptions to those proposed by Deputies Ó Laoghaire and O’Callaghan for insertion into sections 13A(1)(i) and 13A(1)(ii) are already applicable to the offences in this Bill by virtue of the application of the Criminal Justice Act 2011. Section 26 amends Schedule 1 to the 2011 Act by inserting a paragraph 28A which specifies that an offence under sections 5 to 10, inclusive, of the Bill will be included as a relevant offence for the purposes of the 2011 Act. As a relevant offence includes an offence specified in Schedule 1 to the 2011 Act, the amendment to the Schedule to be made by section 26 would mean that the offences created by the Bill would become relevant offences for the purpose of the 2011 Act. The Criminal Justice Act 2011 provides for a range of powers for the purposes of investigation and prosecution of criminal offences to which the Act applies, including presumptions relating to documentation in section 18 that are almost identical to the first two proposed here. Deputy Ó Laoghaire proposes to insert his amendment into section 9 of the Bill, which is in Part 2, while the other presumptions are all contained in Part 4. The presumptions under the 2011 Act are to be applied to offences under sections 5 to 10, inclusive, of this Bill. The other presumptions in sections 14 to 16, inclusive, of the Bill apply only to those offences by virtue of the fact that they relate specifically to bribes, gifts, donations and other such tangible advantages. There is little reason why presumptions relating to documentation could not be applied to the other offences in the Bill, such as those under sections 9 and 10.
I am minded not to accept this amendment for the reasons I have outlined. Part (c) of the amendment proposed by Deputy O’Callaghan relates to a document retrieved from an electronic storage and retrieval system or electronic device. I am aware that such a presumption exists in Revenue legislation and in the Competition Act 2012. As I have said, the Criminal Justice Act 2011 contains its own presumptions and has a much broader definition of "document" than that in the 2012 Act and in the Taxes Consolidation Act 1997, as amended. It is not clear that the third presumption suggested by Deputy O'Callaghan is necessary in respect of the offences contained in this Bill. I will have a look at this. We might even meet between now and Report Stage with a view to preparing an amendment to deal with section 13A(1)(iii) so that we are all on the same page for Report Stage. I do not think there is a huge difference between where we are now in any event. This is the third proposed presumption from Deputy O’Callaghan relating to the retrieval of documents from electronic storage systems. It is broad and assumes that all the documents on a laptop, computer or mobile phone were authored by the owner of the instrument. While this is rebuttable, it could present a difficulty. Given that an instrument could contain millions of documents, there might be an issue about the authorship of those documents. I would not like to see the committee divided on this matter. I will be happy to discuss it further with Deputy O'Callaghan with a view to bringing matters forward. The same applies in the case of Deputy Ó Laoghaire.
Deputy Ó Laoghaire's amendment is the first in this grouping. Would he like to reply to the Minister?
No, I will accept his commitment. I hope he will return with something on Report Stage. If he does not, we may resubmit this amendment or something like it.
I am happy to run it by the Deputy beforehand.
Does Deputy O'Callaghan want to pursue amendment No. 7?
I will take on board what the Minister said. I will have a look at the 2011 Act as well. We can revisit this matter on Report Stage as necessary.
I move amendment No. 8:
In page 15, lines 23 and 24, to delete "whichever section of the Act of 1997 or the Act of 1999" and substitute "section 23A or 23AA of the Act of 1997 or section 19BB of the Act of 1999".
Section 15, which deals with the presumption of corrupt donations, applies particularly to Members of these Houses and to councillors. It provides that an impermissible donation made by a person with a business interest in a matter which is received and not returned will be presumed to be a corrupt donation. It is a very significant provision for Members of the Oireachtas. This amendment proposes to amend section 15(1)(b)(i) so that it mirrors the contents of section 15(1)(a)(ii). We are making provision for circumstances in which someone does not return a donation that is in breach of the enactments identified in section 15(1)(a). I want to identify the specific sections of the enactments in question, rather than merely referring broadly to "the Act of 1997" or "the Act of 1999". I would be interested to hear what the Minister has to say. I have not proposed an amendment to section 15(1)(c), which refers to a donor who "had an interest in the person concerned doing an act in relation to his or her office", but it seems to me that it is rather vague. Obviously, the person concerned would be a Member of the Oireachtas or of a local authority. The term "had an interest" seems very vague. Perhaps the Minister will look at that in advance of Report Stage. I would be interested to hear what he has to say.
We will go directly to the Minister. If other Deputies wish to speak on this amendment, the Minister's comments might be of help.
On Second Stage, Deputy O'Callaghan objected to the use of phrase "in accordance with whichever section of the Act of 1997 or the Act of 1999" in section 15(1)(b)(i) of this Bill. The Deputy is now proposing to amend the more general wording on line 7 of page 14 of the Bill to include specific mention of sections of the 1997 and 1999 Acts. We have discussed the matter with the Attorney General and officials from the electoral franchise division of the Department of Housing, Planning and Local Government. Both bodies were happy with the current wording of this section of the Bill, which refers back to the sections of the electoral legislation already referred to in this section.
I am inclined to continue to favour the wording of the Bill as I am not convinced of the import of the amendment. We could consider drafting a more appropriate amendment for Report Stage. This could be done with officials from the Department of Housing, Planning and Local Government, although they are also of the view that the amendment could cause some difficulty and would need to be redrafted because of the cross-references to the 1997 and 1999 Acts. I exhort members to stick with what we have for the moment. If we can accommodate Deputy O'Callaghan, I will do so.
With regard to section 15(1)(c), I note the point regarding the phrase "had an interest", which is a source of concern to Deputy O'Callaghan. I will examine this matter before Report Stage to determine whether we can clarify the phrase.
It is generally clear from the text what sections of the 1997 and 1999 Acts are being referenced. I say this because the Bill refers to whatever section of the 1997 or 1999 Act that may be appropriate. The amendment was seeking to make this more specific. I will take on board the Minister's response by withdrawing the amendment and considering the matter before Report Stage.
I welcome the Minister's statement that he will consider the phrase contained in paragraph (c) because this provision will directly affect Members of the Oireachtas. People can make mistakes. For example, an individual may receive a cheque for €300 from a company and lodge it without knowing that it is from the company. He or she could then find a presumption is made that he or she was involved in a corrupt donation. For this reason, it will be necessary to be more specific in the Bill. Members of the Oireachtas are entitled to due process as much as anyone outside the House.
We will park further consideration of this matter until Report Stage.
Amendments Nos. 9 and 10 are related and may be discussed together. If amendment No. 9 is agreed to, amendment No. 10 cannot be moved.
I move amendment No. 9:
In page 17, line 16, to delete “5 years” and substitute “10 years”.
The amendment proposes to amend the penalty for any person who is convicted under section 6, which deals with the offence of active and passive trading in influence. This is a serious offence involving the corrupt acceptance of bribes in return for doing something for a person who has granted the bribe. I am aware that other legislation deals with such corruption. The specific penalty suggested in the Bill for someone who is convicted on indictment is five years. The penalty should be increased to ten years to reflect the seriousness with which the Houses of the Oireachtas and members of the public regard an offence of corruption under section 6. I am interested in the Minister's response on whether he proposes to accept the proposed increase in the penalty for a person convicted of the indictable offence or believes five years' imprisonment in an appropriate penalty. I do not believe it is an appropriate sentence. I will not press the amendment but I may do so on Report Stage if it comes to that.
Deputy Ó Laoghaire appears to agree, despite having a different proposal.
Deputy O'Callaghan made a good point. While it is possible that a person could be summarily convicted, the amendments relate to a conviction on indictment. This is a serious offence and while a sentence of five years may be appropriate in some cases, if the maximum sentence is set at five years, judges may consider imposing a sentence of two or three years calculated on the basis of the range of potential sentences. I will not move my amendment, which proposes a maximum sentence of eight years, on the basis that I am in favour of Deputy O'Callaghan's reasonable proposal to increase the maximum sentence to ten years.
The amendment suggests increasing the maximum sentence for trading in influence. The offence targets not the decision maker but those persons who have access to power and wish to corruptly use or abuse this access.
Ireland has not had a specific offence of trading in influence on the Statute Book to date and the proposed offence is new here. In international fora, we have argued that the wider corruption offence contained in the Prevention of Corruption (Amendment) Act is broad enough to include trading in influence. GRECO, the Council of Europe anti-corruption body, did not accept our view on this and has recommended that Ireland introduce an autonomous offence of trading in influence in line with Article 12 of the Council of Europe Criminal Law Convention on Corruption. While that convention has a mandatory requirement for such an offence, the UN Convention against Corruption has also advised state parties to consider adopting trading in influence as a criminal offence when committed intentionally.
If we were to consider corruption offences on a spectrum from what might be considered lower level, more petty corruption to grand corruption on the far end, trading in influence would more often than not be at the lower end of the scale. It has been referred to in textbooks as "bearing the stench of corruption". It is for this reason that I have set the penalties as provided for in the section, namely, on summary conviction to a class A fine, forfeiture of the gift, consideration or advantage, and a term of imprisonment not exceeding 12 months; and, on conviction on indictment, to an unlimited fine, forfeiture of the gift, consideration or advantage and a term of imprisonment not exceeding five years. A five-year maximum sentence is appropriate and proportionate.
As I stated, such an offence is usually at the lower end of the corruption scale. Also, the proposed maximum sentence is very much in line with our international partners and possibly higher than most. Italy has a maximum sentence of two years. Spain also has a maximum sentence of two years but this increases to four years for public officials. Norway, Belgium and Estonia have a maximum sentence of three years. Malta is in the process of increasing its maximum sentence to three years. New Zealand has a maximum sentence of seven years. The only state of which I am aware that has a maximum sentence of ten years for trading in influence is France and this sentence only applies to public officials engaged in trading in influence. Where a private individual is involved, the maximum sentence is five years. I am not sure we should adopt the French model.
Section 7 addresses corruption by officials and this form of corruption attracts a maximum sentence of ten years. I have a reasonably open mind on the matter and I ask that the select committee does not divide on the amendment. I acknowledge Deputy Ó Laoghaire's decision not to move his amendment and I will be happy to give the matter further consideration, albeit in the context of this offence being at the lower end of the scale.
Not only did Deputy Ó Laoghaire withdraw his motion but he added two years to his proposal by signing up to Deputy O'Callaghan's proposal for a maximum sentence of ten years. I would be very careful if I were appearing before him.
I note the Minister states that section 6 is the lesser of the offences being created by this Bill and there may be some logic to having a lesser penalty for the lesser offence. I will give the matter consideration before Report Stage. I am conscious of the position in other countries. However, Deputy Ó Laoghaire made a good point.
We are not talking about the term of imprisonment one gets. It is the maximum amount of imprisonment that can be imposed. I will withdraw the amendment and consider it on Report Stage. I see Deputy Wallace is trying to get in.
Deputy Ó Laoghaire was first, and then Deputy Wallace. We will allow the further commentary even though the Deputy has indicated his intention to withdraw the amendment.
I was going to make that point. If the sentence is a maximum of five years, it is rare that five years will be the sentence imposed. We are talking about the range, and the maximum will dictate that.
I welcome the Minister's change of position. He is no longer a lock them up and throw away the key merchant. He probably realises that prison does not work, so he is to be commended on his position.
I was out of touch, but-----
The Minister is hugely impressed. I do not think any further comment is necessary, Minister. We will move forward while we have got a clear path.
I acknowledge the Deputy's comment in a fulsome way.
On section 17, some technical amendments may be needed in respect of freezing, seizure, confiscation and forfeiture of suspected bribes to ensure there are no conflicting provisions between this Bill and other legislation, most notably the Criminal Justice Act 1994. This area is being examined and I intend bringing forward amendments on the next Stage, which may well affect section 17 and other sections.
Members will note that in regard to Report Stage.
Amendment No. 11 is a stand alone amendment in the name of Deputy Ó Laoghaire.
I move amendment No. 11:
In page 20, to delete lines 26 to 29 and substitute the following:
“(2) (a) In proceedings for an offence under subsection (1), that where the body corporate in question stood to benefit from the commission of an offence under this section, by way of obtaining or retaining—
(i) business for the body corporate, or
(ii) an advantage in the conduct of business for the body corporate,
there shall be a rebuttable presumption, that the body corporate was aware of the commission of the offence.
(b) If the presumption under subsection (1) has been rebutted, it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.”.
My colleague, Deputy Cullinane, Deputy Catherine Murphy, one of the Social Democrats Deputies, and some of the Fianna Fáil speakers made the point correctly that section 18 creates what would be identified by defence lawyers as a potential gap in the legislation. It is the manner in which companies that have been put into a position under what is a new offence to disassociate themselves from the actions of people within that company and use a defence of plausible deniability. I have made an attempt to tighten that up on the basis of a rebuttable presumption. The amendment is structured on the basis of the obtaining or retaining of the same two qualifications as exist in section 18(1). It states:
... by way of obtaining or retaining—
(i) business for the body corporate, or
(ii) an advantage in the conduct of business for the body corporate,
I have included the words, "[...] there shall be a rebuttable presumption, that the body corporate was aware of the commission of the offence". That is a rebuttable presumption and all the qualifications that apply to such a presumption. After that reference to a rebuttable presumption I have inserted what is contained in section 18(2), which is that " [...] it shall be a defence for a body corporate [...] that it took all reasonable steps and exercised all due diligence". It is sensible that where a company was not responsible for the actions of its employee and that employee or member of the organisation was acting in a personal capacity and with no knowledge or complicity from his or her superiors, that should be a reasonable defence, but it cannot be allowed to be used as a loophole. It should not be too loose. If the Minister has other observations about how that object might be achieved, I am open to hearing them but as things currently stand, sections 18(1) and 18(2) are too loose and need tightening.
I thank Deputy Ó Laoghaire. With the pattern already established, we will go to the Minister first for further comment.
I listened closely to Deputy Ó Laoghaire. I am not in a position to hold with him for the following reasons. We are anxious to achieve a strict liability offence whereby the body corporate is held responsible if someone connected with the body corporate does something corrupt that is for the benefit of the body corporate. Deputy O’Laoghaire is attempting to introduce a rebuttable presumption that the body corporate knew but the next question will be, who knew? If the individual’s supervisor or direct colleagues knew, does that represent the body corporate being aware? If, for example, the line manager knew but the directors did not know, is it questionable whether the body corporate was aware?
I know this is not Deputy Ó Laoghaire's intention but I would be a bit concerned that the proposed amendment is introducing a concept of a presumption that someone in power in the company knew what was happening. This adds further to the burden, and I believe it is an unnecessary layer. The amendment makes provision as to what happens where the proposed presumption is rebutted, but it does not make clear what is to happen where the presumption is not rebutted. This would cause uncertainty, and it may cause difficulties in achieving what we all want, which is a successful prosecution of what is an important offence.
It does not matter whether anyone in the body corporate knew. The company is still guilty unless it can prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. The approach already in the Bill is cleaner and simpler. The real purpose of this strict liability offence is to encourage companies to conduct due diligence and to take action to prevent corruption and corrupt acts. On the issue of providing for a defence, I would say that if bodies corporate have no defence available to them, there would not be an incentive to conduct the formal due diligence we believe is necessary in the circumstances.
The concept of a director, manager, secretary or other officer of the body corporate knowing, consenting or conniving is introduced in subsection (3). If it can be proven that that person knew, that person can also have proceedings taken against him or her. I am a bit concerned that there is an unintended consequence of introducing a new layer here that might make it more difficult to achieve a prosecution.
I take on board what the Minister has said. I have a view that section 18(1), and section 18 generally, might possibly have the same difficulty even as they stand in that if an organisation has the policies on paper, which appear to indicate that all the safeguards exist, that there is oversight and that the policies are, technically speaking, in place, but that a number of individuals within a particular division or section of a company have co-ordinated in such a way as to obtain an advantage for the business, potentially they would be able to escape prosecution on the basis of section 18(2). I will consider the Minister's point and redraft, but I would like him to give a commitment to examine this.
Section 18(2) provides too much space for defence and I do not think the measure is tight enough. The Minister should re-examine that to ensure it cannot be used as a loophole or in a way that creates too much flexibility.
Would any other member like to comment on the amendment? Does the Minister have anything further to add at this point?
While I am happy to give the matter further consideration, I wish to point out that we have given it detailed consideration already in terms of consultation with various stakeholders in the criminal justice system. I refer to departing from a situation where we have left it to the body corporate to prove that it took all reasonable steps, rather than a situation where a company goes to court and says it took reasonable steps to avoid the commission of an offence. In the event of that not being enough, I am conscious of what Deputy Cullinane on Second Stage and I will give it further consideration. That said, what we have drafted here is in line with the requirements of the OECD. We will come back to it but I am not inclined to accept the amendment.
Where stands the amendment?
I propose to withdraw it and the intention is to reintroduce something similar on Report Stage.
I intend to bring forward a technical amendment to section 20 on Report Stage.
There is a similar notice in respect of section 21. I intend bringing forward an amendment that will be merely technical on Report Stage.
I move amendment No. 12:
In page 23, between lines 9 and 10, to insert the following:
Amendment of Schedule 1A to Criminal Justice Act 1994
23 Schedule 1A to the Criminal Justice Act 1994 is amended—
(a) in Part 1—
(i) by the deletion of paragraph 1, and
(ii) in paragraph 6, by the substitution of “paragraphs 2 to 5” for “paragraphs 1 to 5”, and
(b) in Part 2—
(i) by the insertion of the following paragraph after paragraph 17:
17A. An offence under section 5 of the Criminal Justice (Corruption Offences) Act 2018.”, and
(ii) in paragraph 19, by the substitution of “16, 17 and 17A” for “16 and 17”.".
I am bringing forward this amendment to update certain references to corruption offences in Schedule 1A to the Criminal Justice Act 1994. That Act allows orders to be made for the confiscation of the proceeds of offences after conviction.
Paragraph (a) is a technical amendment. It deletes the references to the Prevention of Corruption Act 1906 from the Schedule. Paragraph (b) inserts a reference to an offence under section 5 of this Bill in Part 2 of the Schedule. This will allow a certain type of confiscation orders to be made where a person is convicted of that offence. I ask for the agreement of the committee to the amendment.
If nobody wishes to comment on the amendment or the Minister has nothing further to add I will put the amendment to the committee.
I move amendment No. 13:
In page 30, between lines 16 and 17, to insert the following:
No. 50 of 2001
Definitions of “active corruption” and “passive corruption” in section 40(1)
Sections 43, 44 and 45(2)
I move amendment No 14:
In page 5, line 15, after “2003” to insert the following:
“and to give partial effect to Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law”.
I have a quick question for the Minister. It is probably out of order. The Minister listed a number of Irish public bodies. Will other bodies that have not been listed be included?
So it is not only the ones that are listed, it is every other public body that is included in Schedule 1.
There are a number of boards.
Will other State agencies be included that have not been listed?
The Minister is seeking clarification and I will bring in Deputy Wallace then.
I hope we would not exclude particular bodies by listing other ones.
This denoting is similar in other pieces of legislation as far as public bodies are concerned. I do not think any are excluded.
There is a subtext of concern as to the non-named entities.
Does Deputy Mick Wallace wish to speak about the same matter?
Yes. Is it okay for us to say we have mentioned it in order that we will have the right to table an amendment on it on Report Stage?
Yes, absolutely. It could refer back to the earlier amendments on the position of public bodies.
Are Deputies Jack Chambers and Mick Wallace both all right with that?
That is fine. I will not get into the matter further.
The Deputy reserves the right to table a similar amendment on Report Stage.
Yes. I am referring to bodies that receive public money under service level agreements and which, therefore, might not technically be public bodies but are in terms of pay agreements and their operation. Legally, they are not public bodies.
I am happy to take examples from the Deputy, but I read in paragraph (x)-----
I know. It is a question of clarifying the matter.
Paragraph (x) reads "any other body, organisation or group appointed by the Government or a Minister of the Government". It comes at the end of a comprehensive list of public bodies in section 2 of Schedule 1.
There could be a de facto public body that is a charity which under a service level agreement receives 100% of its funding from the State. Will such a body be subject to the legislation?
I think it is covered, but I would be in a position to provide more specific information if I had an example. To be conclusive, because it is an important point, we can deal with the matter on Report Stage.
Are Deputies Jack Chambers and Mick Wallace satisfied?
I thank the Deputies.
As the Bill has now completed Committee Stage, it is recommended that members submit amendments to the Bills Office without delay as Report Stage may be taken at short notice.
I again thank the Minister's officials for attending. The select committee will adjourn until 9 a.m. on Wednesday, 28 March, when it shall consider Committee Stage of the Domestic Violence Bill. Go raibh maith agaibh. I wish members a nice weekend.