Prevention of Corruption (Amendment) Bill, 2000: Committee Stage.

This meeting has been convened for the purpose of consideration of the Prevention of Corruption (Amendment) Bill, 2000. I welcome the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, and his officials to this meeting. It is our intention, if at all possible, to get through the Bill this afternoon. Another meeting is scheduled for this venue at 5 o'clock so we will have to conclude at 4.45 p.m. We will examine the situation later and if it looks as if we can conclude our business we will continue until 4.45 p.m., otherwise we will finish at 4.30 p.m.

The committee has agreed that we will start with section 2, amendment No. 3, and that we will come back to section 1 later.

NEW SECTION.

I move amendment No. 3:

In page 3, before section 2, to insert the following new section:

2.-(1) An agent or any other person who-

(a) corruptly accepts or obtains, or

(b) corruptly agrees to accept or attempts to obtain, for himself or herself, or for any other person, any gift, consideration or advantage as an inducement to, or reward for, or otherwise on account of, the agent doing any act in relation to his or her office or position or his or her principal's affairs or business shall be guilty of an offence.

(2) A person who-

(a) corruptly gives or agrees to give, or

(b) corruptly offers, any gifts, consideration or advantage to an agent or any other person, whether for the benefit of that agent, person or another person, as an inducement to, or reward for, or otherwise on account of, the agent doing any act in relation to his or her office or position or his or her principal's affairs or business shall be guilty of an offence.

(3) A person who knowingly gives to any agent, or an agent who knowingly uses with intent to deceive his or her principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false, erroneous or defective in any material particular, and which to his or her knowledge is intended to mislead the principal shall be guilty of an offence.

(4) In subsections (2) and (3), an agent does an act in relation to his or her office or position or his or her principal's affairs or business if it relates to-

(a) any function of his or her office or position or of his or her principal,

(b) any business or administration relating to the performance of such a function, or

(c) any matter or transaction whatsoever, actual or proposed, in which such agent, by virtue of his or her office or position, or his or her principal is or may be concerned.".

Thank you, Chairman, Minister and members of the committee for obliging me. I was delayed because I had to deal with a deputation with another Minister which is trying to get gas into Wexford. I know there are those who think I generate enough gas personally to keep the county going.

I was tempted to say that.

In moving the amendment I should state a fairly comprehensive case. Much of what I want to do in this amendment is reflected in other amendments. If I can establish the principle of what I want to do now, the Minister might be in a position to respond on that basis. I was heartened this morning to receive the Minister's amendments, some of which reflect the amendments I tabled earlier, so they have obviously been taken into consideration by the Minister. That may well enable us to get through our business more expeditiously this afternoon.

Amendment No. 3 is an alternative to section 2. What is required is not another amending Prevention of Corruption Bill to sit alongside the other Acts on the Statute Book but rather comprehensive legislation to which people can refer as the governing framework for anti-corruption law in the State. This is an amending Bill that leaves four other statutes intact in the book of enactments which go back to 1889. Of these, there are only about a dozen provisions that are relevant. I hope the principle behind my argument can be accepted and, if so, we can do our business expeditiously.

Several of my amendments are aimed not at creating new law but simply at restating the relevant sections of existing statutes in one Bill. That is the way in which we should be going. It will be very difficult for anybody, particularly public administration officials or Members of the Oireachtas who will be affected by this legislation, to obtain a single piece of comprehensive legislation. The original Prevention of Corruption Act goes back to 1889 and only applied to public bodies outside central government. The 1906 Act introduced a comprehensive measure dealing with corrupt transactions with an agent in relation to the affairs or business of his principal. Those holding office at the time under the Crown were deemed to be agents of the Crown. As Members of Parliament were not considered to hold office under the Crown they were not encompassed in the 1906 provision in that capacity.

In 1916 a presumption of corrupt payment was introduced to cover situations where it was proven that a payment was made by a person holding or seeking a Government contract. In 1995 the opportunity was taken by the Government, of which I had the honour of being a member, in the Ethics in Public Office Act to update the language of the Prevention of Corruption Acts and introduce a comprehensive definition of "public body" to which that law would apply.

My argument is made in support of the amendment but it applies equally to other amendments which I hope will be accepted by the Minister. What is now needed is not further piecemeal legislation but central and workable legislation which could be identified and reproduced in a single comprehensive way. I hope the arguments I have made are logical and that the Minister will accept the amendment, not as making new law but simply defining the existing law in a comprehensive way.

The Minister's section 2, unamended, makes for tortuous reading because it amends a section of the 1906 Act which has to be read, not in connection with that Act but also with the amending legislation passed by the Oireachtas since. I do not know whether there is a general principle within the Department that this should not be done but I hope, whatever advice the Minister has received from his officials, this more straightforward approach to the Bill could be accepted. If we can accept this we are working towards a single piece of legislation. There are only one or two outstanding issues of substance that we can debate in the course of the afternoon.

Deputy Howlin has accepted that his amendment is contained in the Bill as presented and set out in section 2(1) and (2). Similarly subsections (3) and (4) of the amendment deal with the situation where an agent acts so as to deceive the agent's principal. It makes it an offence for a person to knowingly give to an agent, or an agent to knowingly use, any document which is false or otherwise in order to mislead the principal. This is identical to section 2(3). The Deputy has accepted that in general terms the content of the legislation is similar to the content of the amendment in so far as the amendment relates to the content of section 2.

The Deputy stated that we do not want piecemeal legislation and that he would prefer to see consolidation. In that respect he will accept that is a fairly complex task to say the very least. As I have said before the code of anti-corruption legislation will be the subject of early restatement when the Statute Law (Restatement) Bill is enacted. Such a restatement will be as effective as a consolidation measure, it can be prepared more quickly. Since we are at the point where we will have a Statute Law (Restatement) Bill and there will be a restatement of anti-corruption legislation I ask the Deputy to withdraw his amendment. He will appreciate that the method by which I am proposing to proceed will lead to an expeditious restatement of anti-corruption legislation and achieve the objective which he has in mind.

I do not honestly accept that. I have tabled a number of amendments simply to tidy up the various enactments. There are four pieces of anti-corruption legislation dating back to 1889. The net effect of cross-referencing all those pieces of legislation would be rather limited because only about a dozen provisions are really effective. Some of the language involved is tortuous if one tries to cross-reference it. As I have taken the trouble to table amendments that would consolidate the legislation in a holistic way, why does the Minister not accept them now? Realistically the parliamentary time available to the Minister and his officials is extremely precious. As the Minister will be seeking parliamentary time for dozens of legislative measures he should accept the thrust of what I want to do, which is to have a single consolidating Bill rather than doing something that is less than perfect now. I do not want to spend too much time on this principle because there are other matters of substance that we need to get to.

Whatever the Minister's officials may want to say, rather than contriving or presenting an argument for not consolidating now, he should accept the amendment. In essence, he has said that there is no substantive point in the amendment that is not encompassed already in the legislation. There is therefore no lawmaking involved with which he disagrees. What then can the disagreement be with consolidating legislation as we go along? It should be done in order that a public official, an elected representative or a Member of the Dáil who wishes to read the exact legal framework within which he or she is, and will be, required to operate will be provided with a single legislative measure. Why can we not provide for this? That is normally the way we go about our business rather than trying to cross-reference three or four different legislative measures dating back to Victorian times.

Will the Minister reflect upon this matter and concede the point? Will he accept that we can graft on these matters now? If there are any imperfections we can pick them up on Report Stage. The Minister's officials can fine tune these matters between now and Report Stage in order that following Report Stage, next week or the week after, we will have a single piece of legislation. As it is a very short Bill it is not an enormous drafting matter. I hope the principle will be accepted by the Minister. It is a good principle in general to have a single enactment that people can read.

The very proposals put forward by Deputy Howlin illustrate the fact that consolidation is a complex business and that it would take a far greater degree of time and thought than he has given to his amendments. For example, there are provisions of earlier Acts which would be lost if his amendments were accepted.

For example, under the 1889 Act, the courts have the power, following conviction for corruption, to order the payment by the convicted person of the amount or the value of any gift or reward and the forfeiture of the pension rights of persons in the employment of any public body. These powers are not retained in any of the amendments proposed by Deputy Howlin and if the Deputy's amendments were to be accepted, many valuable sanctions which have existed since 1889 would be lost. It would require a great deal of thought and work to consolidate anti-corruption legislation. Consolidation legislation is a difficult task for draftsmen. Calls have been made in the Dáil and elsewhere for the urgent enactment of this legislation and I subscribe to this view. It is not possible for me to accede to Deputy Howlin's request, much as it may appear desirable.

A statute law (restatement) Bill will be enacted in the near future and, in the context of that legislation, anti-corruption legislation will also be restated. This will result in focused, uncomplicated legislation which people will readily understand. Everyone will know where he or she stands. This is what both I and Deputy Howlin are trying to achieve and we only differ in terms of our proposed methodology. It is content, not methodology, which is important here. The content of my proposal is more comprehensive than Deputy Howlin's for the reason that valuable sanctions which have existed for more than a century will not be lost.

I am disappointed by the Minister's response. We are attempting to produce legible legislation. The Minister has tabled an amendment to section 3 with which I heartily agree but, for a lay person picking up the Bill, the section will read:

Where, in any proceedings against a person to whom this section applies for an offence under the Public Bodies (Corrupt Practices) Act, 1889, as amended, or the Act of 1906, as amended, it is provided that . . . . etc.

In order for a public official or a Member of the Dáil to know what exactly is referred to, they must trawl through the 1889 and 1906 Acts, find out where and when they were amended, ascertain whether the 1996 ethics legislation made further amendments in terms of definitions etc. and graft all that information on to this Act. This will be a cumbersome way of doing business.

I understand the Minister's comments but I believe his officials have the ability to redress any outstanding deficiencies - anything which "has fallen off the table" to use the Minister's words - prior to the Report Stage debate. I regret the Minister is not open to taking positive action along these lines. We constantly hear the official line that although there is agreement on a particular objective, it cannot and will not be achieved.

I presume the Minister is familiar with the working paper or final report - I cannot recall the exact document - of the Law Reform Commission which highlights the fact that much of the legislation which goes through the Oireachtas, particularly legislation which amends other legislation, is generally incomprehensible to ordinary people and, occasionally, to lawyers. That is a reality. Deputy Howlin's proposal to make the legislation as clear as possible is reasonable. I do not know whether it is possible to achieve that in the context of this legislation but, considering that this Bill was published in January 2000 and has taken 18 months to reach Committee Stage, I do not understand why very basic drafting work could not have been carried out in the intervening period to facilitate Deputy Howlin's proposal.

We will come to the Minister's amendment to section 3 later and I will comment further on it at that stage. There is no point in using the public purse to pay for very good work to be carried out by the Law Reform Commission in a broad range of areas, including those relating to making legislation more legible, if we blithely proceed as if such recommendations did not exist. If the Minister feels the need to publish the Bill, as is, incorporating any amendments made, there is no reason he should not give a commitment that his Department will compile an annotated and comprehensible version of the legislation during the summer months. This happens in other jurisdictions. Given that this legislation could accidentally criminalise Members of the Oireachtas, it is extraordinary that the Minister is not prepared to be more open to suggestion.

I have already outlined the position on this matter. I do not wish to introduce a discordant note but Deputies Shatter and Howlin are well aware that considerable difficulties were experienced in regard to the introduction of this legislation, not least because of the fact that we could not get agreement from the Opposition.

We know nothing about that.

That is complete nonsense.

The Minister should spell out the nature of the difficulties to which he refers.

We have raised this Bill regularly on the Order of Business during the past year. I went so far as to introduce a Bill of my own which is also on the Order Paper.

The Minister is in possession.

I have gone a considerable distance towards achieving Deputy Howlin's objectives by stating that there will be a restatement of anti-corruption legislation, pursuant to the statute law (restatement) Bill. This is a reasonable approach to the matter and I cannot understand why Deputies opposite cannot be reasonable and accept that. There is no point in saying it is a simple matter of introducing a consolidation Bill; this would entail a great deal of difficulty. That Deputy Howlin's proposal would result in the loss of valuable sanctions illustrates the accuracy of my assertion. The proposed restatement legislation will be as effective as consolidation legislation and can be prepared more expeditiously. I do not wish to be facetious when I say I wish it were true that there would be a stampede on the Government Publications Office when this legislation is published but I do not believe that will happen.

I am dismayed. I had genuinely hoped we could get through Committee Stage quickly. Not only is the Minister being truculent in terms of his responses, he is also being insulting. It is simply not factual——

It is. The Taoiseach offered on numerous occasions to establish an all-party committee to consider the question of ethics. Deputy Howlin is well aware that his own party leader refused, for various reasons, to participate in that discussion. That is a matter of public record.

Deputy Howlin is in possession.

I thank the Chairman for his fair treatment. The Minister is totally wrong and is deliberately misleading this committee. Although it does not surprise me, I am shocked that the Minister for Justice, Equality and Law Reform would present such inaccuracies - I would almost say untruths - to the committee. The Labour Party did not involve itself in an all-party committee——

I would caution the Deputy about the use of the word "untruths".

I said I would almost use the word.

Perhaps the Deputy should withdraw the word.

I stopped short of using it.

The Deputy cannot use the word because it is untrue. We are all well aware——

Is there to be any order at this meeting?

The rules are that the speaker in possession must not be interrupted.

Deputy Howlin is aware that his party would not participate in discussions on this legislation.

Deputy Howlin is in possession.

The Minister has come in here to obfuscate, mislead and bully the committee and he will not get away with that. The reality is that the Labour Party did not participate in the Taoiseach's con of an all-party committee to address matters of standards because we simply sought a guarantee that the principle of banning corporate donations was acceptable. This related to the banning of corporate donations legislation introduced by the Labour Party which we understand is to be grafted on to the electoral legislation. I understand that the Labour Party point of view will be largely, if reluctantly, accepted by Government. The Minister knows that has nothing to do with this legislation. The kindest thing I can say is that he is being disingenuous in regard to the fact that he has done nothing about this Bill for more than a year.

Can we get back to the amendment?

I will say no more on this matter unless I am further provoked. On the amendment, it is unacceptable that we should introduce tortuous legislation such as this rather than a single consolidation Bill. There was ample time to produce such consolidation legislation which would not have entailed a great deal of work. I produced a consolidation Bill which is listed on the Order Paper. If there are omissions from that, which I accept there may be, the Minister's officials could address those. This is not rocket science and would not overly strain the Minister. I am dismayed that he seems unprepared to accept this amendment but we have probably debated it for long enough.

As the Minister has already outlined his position, is the amendment being pressed?

I will decide that depending on what response the Minister gives me now.

I call on the Minister for a final response.

I do not intend to cause any further provocation. I cannot accept Deputy Howlin's amendment.

Amendment, by leave, withdrawn.

To digress for a moment, Australian Supreme Court Justice, Mr. Terence John Higgins, is in attendance at today's meeting. I ask the Chairman to extend the warmest possible welcome to Mr. Higgins, a distinguished Australian of Irish extraction who is a great friend of Ireland.

I welcome Mr. Terence John Higgins to today's meeting. I hope he does not leave with the impression that all our proceedings are conducted in this vein.

Australian Supreme Court Justice, Mr. Terence John Higgins

They are conducted in much the same the way in Australia.

SECTION 2.

Amendments Nos. 4, 15, 16 and 19 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 4:

In page 4, line 24, to delete "£1,500" and substitute "£5,000".

This amendment relates to the offences created under section 2 which, given the labyrinthine nature of this exercise, amends the 1906 Act by substituting a new section for section 1. The new section provides that where an agent or any other person who corruptly accepts or obtains, or corruptly agrees to accept or attempts to obtain, for himself or herself, or for any other person, any gift, consideration or advantage as an inducement to, or reward for, or otherwise on account of, the agent doing any act or making any omission in relation to his or her office or position or his or her principal's affairs or business shall be guilty of an offence. Subsections (2) and (3) of the new section address other aspects of what constitutes an offence under this new section.

This legislation prescribes certain penalties for corruption offences. Under subsection (4), a person found guilty of an offence of corruption can, on summary conviction, be fined a sum not exceeding £1,500 or can be sentenced to a term of imprisonment not exceeding 12 months or both. The fine of £1,500 is presumably based on the perception that the District Court is one of limited jurisdiction in the context of prosecuting offences. It is my contention in regard to this Bill and other legislation that the fines which the District Court may impose for criminal offences are significantly out of sync with the value of money today. In the context of the District Court having a limited jurisdiction in criminal matters, there is a need to rethink what figure would constitute a limited fine and would not give rise to constitutional difficulties.

I contend that in circumstances in which it is deemed appropriate to regard an offence of corruption as a minor offence - I expect that in the majority of cases, it will be deemed a major offence which will warrant indictment proceedings - the imposition of a maximum fine of £1,500 would unduly constrain the District Court. The court should be able to impose a larger fine in these circumstances and, accordingly, my amendment proposes the replacement of "£1,500" with "£5,000" which would be a more appropriate figure.

On a wider issue to which I will return in the debate on the section, I understood that I made a proposal to increase the ten year sentence provision in this subsection to 20 years although I may have made the proposal in regard to another section and omitted it in this one. I want to draw attention to this matter in order that we can ensure consistency in the Bill.

I hope the Minister will accept this amendment. When I proposed a similar amendment to amendment No. 4 in regard to a previous Bill, the Minister expressed the view that District Courts should not be able to impose fines in excess of £1,500 or £2,500. It is my understanding that in dealing with offences under the fisheries Acts, the District Court has a far broader jurisdiction to impose far more stringent penalties than fines of £1,500 or £5,000. As it is constitutionally in order under the fisheries Acts for the District Court to impose very stringent fines and penalties, there is no reason fines for corruption in the District Court should be limited to £1,500. A sum of £5,000, while relatively modest, would be more in keeping with the District Court's constitutional position in terms of its limited capacity to impose sentences and financial penalties and would more accurately reflect today's value of money.

I remind the Deputy that we are also discussing amendments Nos. 15, 16 and 19. Amendment No. 16 relates to the point raised in regard to increasing the maximum term of imprisonment from ten to 20 years.

I did not realise that. There is a proposal that on conviction on indictment, an unlimited fine may be imposed by the court. In other words, the court will determine the maximum fine. I query the constitutionality of this. Given my proposal to impose a larger fine on summary conviction, an extremely large fine should be imposed on conviction on indictment. Perhaps the Minister would outline a precedent in the context of an indictable offence allowing the courts to impose any fine whatsoever, ranging from £1 to £50 million, depending on the view of the judge or the circumstances of the particular case.

Has the Deputy tabled an amendment on this matter?

No, I raise it because it is a most unusual approach which may give rise to constitutional problems. Having provided for an unspecified fine without an upper limit, the Minister, in the context of the offence of corruption, prescribes a maximum sentence of ten years. We must address the issue of political corruption in the context of the tribunals and the extent to which a former leader of the Fianna Fáil Party managed to consume other people's money while in high office and the fact that a former Cabinet colleague of the Minister's——

The Deputy should stick to the amendment.

——was obliged to explain the circumstances relating to his accumulation of unexplained funds over 20 years. Having regard to the possibility that politicians who abuse their office could accumulate millions of pounds over a number of years and could, in doing so, act corruptly, to impose a restriction on the courts to limit the period of imprisonment to ten years is too limited.

Amendment No. 16 proposes the deletion of the reference to ten years and the insertion in its place of 20 years. That is not to say that should a court convict a person of corruption under this provision, it would be obliged to impose a sentence of 20 years. Under the Minister's proposal, the maximum sentence which can be imposed is ten years and there is a judicial discretion to determine what sentence should be imposed up to ten years, depending on the background of the case. I propose that the courts should have the discretion to impose a sentence up to 20 years if, as a result of corruptive practices and abuse of their positions, people accumulate millions of pounds. If as a result of corrupt practice, people only accumulate small sums of money, it may not be appropriate to impose such stringent sentences. On the other hand, if such people commit great wrongs which impact adversely on a large number of people, the impact of their actions, rather than the amount of money received, should determine the nature of the sentence imposed.

I hope the Minister will see fit to accept amendment No. 4 and the other reasonable amendments I have tabled on behalf of the Fine Gael Party. I will regard his response to them as a litmus test of the extent to which the Government, particularly the Fianna Fáil Party, is committed to stamping out corruption in public life.

Amendment No. 19 in my name is part of this group of amendments. I was at a loss at the outset to understand why the Minister was so truculent but, following the introduction of our distinguished Australian visitor, it became clear that he was simply trying to make Mr. Higgins feel at home. I had the privilege of visiting the Australian Parliament and the interaction there certainly makes our debates seem very pleasant and tame. I am reminded of the old adage that people who like sausages and respect the law should not watch either being made.

The same is true of black pudding.

Amendment No. 19 which proposes the prescription of penalties links into my overall view of a consolidation Bill. My proposal does not differ from the Minister's proposals on penalties, namely a standard District Court penalty on summary conviction of £1,500 and-or a term of imprisonment of up to 12 months. On conviction on indictment, I also propose a fine or term of imprisonment not exceeding ten years which would constitute a fairly hefty sentence. Nobody in Ireland has been convicted of or jailed for corruption although that may change in due course when the evidence presented to the various tribunals is considered by the prosecuting authorities.

We must strive for balance in regard to penalties. I am privileged to be a member of the committee on Members' interests which recently drafted a code of conduct and carried out the initial analysis of the standards in public office legislation currently before the House. While we all recognise that serious corruption should be addressed in the most stringent manner possible, some jurisdictions have established bodies to address corruption which have acted in a manner which surprised the people who establishedthem.

I understand that among the first people convicted of corruption as a result of the investigations of the Commission Against Corruption in New South Wales was the Premier of New South Wales. I met representatives of the New South Wales commission who listed the exposure of a member of parliament who fraudulently used his travel warrant as one of the commission's great achievements. The politician in question passed the travel warrant on to a colleague as he was unable to attend the meeting for which it was granted. This was regarded as a very corrupt act and penalties were imposed. While we must ensure that people act in accordance with the standards we set and that instances of obvious corruption are addressed as vigorously as possible, the penalties we impose must reflect the nature of the crimes committed. The proposals in the Bill meet the exigencies and my proposal is premised on an acceptance of my amendments on consolidation which would necessitate a specific penalties provision. Since that is already being opposed by the Minister I will not be pressing amendment No. 19.

Members will not doubt the Government is anxious to pass legislation as soon as possible to deal with the question of corruption. It is very dangerous to speak about matters which are before tribunals. As I have said before, it is a mistake to speak about people before tribunals of inquiries and Deputy Shatter should not continue with that approach. The tribunals are not investigating allegations of impropriety in relation to members of my party soley. There is no exclusivity in this respect, indeed there is an inquiry into a prominent former member of his own party. I do not know where that will lead but the Deputy and I both know it is there. He will also be aware of allegations that his party received funding from various corporations but I do not want to go into that as these are matters being inquired into.

Could everybody concerned agree not to refer to individuals? It has already been done and we will leave it.

I suppose Fianna Fáil has received no donations from corporations ever.

Let us get down to amendment No. 4. We have gone through the political part of it and if we could get down to the legislation there is a question of £1,500 being changed to £5,000, and of ten years being changed to 20.

All I can say to Deputy Shatter is there is no danger of my party being dubbed the Esat DigiGael party. That is for certain.

Fisheries offences, which have been raised by Deputy Shatter, are different in the sense that the fines and penalties available under the fisheries Acts deal with a specific area deemed extremely urgent. We are talking about the catch, boats landing and being held up in ports and the urgency of often having to deal with things in a summary fashion. Regarding the absence of unlimited fines, and lack of precedent for them, under the Investment Intermediaries Act, 1995, on indictment the court has a power to fine not exceeding £1 million. The reason we introduce an unlimited fine with this legislation is that it will allow the court to take account of the degree of benefit the individual has obtained as a result of his or her corrupt actions or omissions. It seems perfectly sensible to allow the court to impose a fine commensurate with the degree of corruption or gain.

Deputy Shatter's amendments Nos. 4, 15 and 16 seek to increase substantially the penalties provided in the Bill. He proposes the maximum fine which can be imposed for summary conviction for offences of corruption be increased from £1,500 to £5,000 and, generally, I am in favour of increasing the monetary penalty following summary conviction. However, the advice available to me from the Attorney General is that any increase on the present level of £1,500 could not be as high as £5,000. Consideration will be given to increasing this level of fine but I do not wish the approach to be piecemeal. The matter is best considered in the context of a broader examination of the level of fine appropriate for summary offences.

Deputy Shatter wants to see the maximum term of imprisonment which may be imposed following conviction or indictment for an offence of corruption in office under section 6 of the Bill increased from ten years to 20 years. In this he effectively draws a distinction between this and other offences under the Bill which would continue to carry a penalty of up to ten years. Whilst there may be concern at the use of public office for personal gain, making a distinction such as that suggested by the Deputy implies that other offences under the Bill are less serious. That is not something we would like to suggest so I cannot accept that view, nor I am sure could Deputy Shatter. We must not forget that the Bill increases the penalty from the present maximum of seven years to ten years and increases the monetary penalty which may be imposed in addition to a term of imprisonment from a maximum of £50,000 to an unlimited fine. It is notable that when Deputy Shatter's party introduced its anti-corruption Bill in 1999, it saw fit to leave the penalties as they then stood, namely, a fine of up to £1,500 or up to 12 months imprisonment, or both, following summary conviction and a fine of up to £50,000 or seven months imprisonment, or both, following a conviction on indictment. I am therefore inclined to stick with the ten year provision in the Bill which is proportionate to the offences contained in it. It sends out a sufficiently powerful message that corruption in all its forms will not be tolerated. We can return to the issue of the fine of £1,500.

Amendment No. 19, in the name of Deputy Howlin, provides for the same penalties for corruption as are at present contained in the Bill but is premised on the notion that the earlier amendments had been accepted and purports to set out the penalties for offences under those amendments.

I explained all that.

Yes, the Deputy explained all that. I am just reiterating what he said. That would mean there would be a flaw in the amendments and that is what I am trying to point out.

I am prepared to examine an increase of the £1,500 within the constraints under which we must operate. I am going to go back to the Attorney General to see if it can be increased, though he says we cannot get it to £5,000.

Where someone is a public official, elected or unelected, and falls under the categories mentioned in the legislation, there is a particular duty of trust and a commitment is made to the public as to the manner in which duties are carried out. That is a very special position to hold in the context of the work undertaken and decisions made or decisions which fail to be made. One of the difficulties of the moment is with the credibility of politicians and the undermining of confidence in our public institutions. That derives from the revelations we read about on a daily basis. None of us, as politicians, should be sanguine about that.

The Minister correctly says that under the current law the maximum penalty that can be imposed for corruption is seven years and that is now being increased, on his proposal, to ten years. Based on what we now know in the context of revelations in the public domain, there is a need for this House and the Government to send out a very clear message. The message should be that if you engage in public duties, are paid out of the public purse, act corruptly, substantially benefit financially and as a result do serious damage to the State or its citizens, very stringent penalties can be imposed by the courts.

A sentence of ten years after remission, as the Minister knows, would mean someone would serve approximately seven years. In the context of the capacity of corrupt persons to personally benefit, and of the damage they can do, the courts are not being given as wide powers as are needed to deal with the issue of corruption. It is unfortunate that in this legislation, amending an Act of 1906, we should get it wrong. We may not revisit this area for some considerable time so we should get it right and send out a powerful message that corruption by people in public office, with public duties will not be tolerated. It is not unreasonable to propose that the courts be enabled to impose a penalty of up to 20 years for corrupt practices in those circumstances. I do not want to delay the committee by going through the broad range of criminal legislation in which the courts can impose penalties of 15 or 20 years, but there are a number of instances where sentences of that nature are certainly of equal seriousness to the type of corruption that could be covered by this legislation. In a number of instances they are no more serious.

The Minister has got this seriously wrong and I urge him to rethink. It is particularly serious in the current political environment with the revelations of which we are aware. Without prejudging the outcome of any tribunal and from what we know from tribunals which have concluded their business, the sentencing powers the Minister intends to confer on the courts are inadequate. The Minister sought to remonstrate with my referring to individuals in his party with whom he has worked as a colleague. It is noteworthy that the only person who has made public comment disrupting a court prosecution arising from the receipt of moneys by people in public office is the Tánaiste. There is no one on the Opposition side of the House who has made public comments creating difficulty in the bringing of prosecutions.

The Tánaiste is not here to answer you.

In the context of the Minister's remonstration, it is appropriate that I correct the record. I urge the Minister to adopt the Fine Gael proposal that the courts have made available to them the capacity to impose sentences of up to 20 years. The Minister's willingness to do this is a litmus test of the Fianna Fáil commitment to stamp out corruption in public life. I put that down as a marker in advance of the Minister speaking.

I will conclude on the issue of fines. Those who know the Minister well will conclude he is a man with a very good sense of humour and I congratulate him on managing to maintain the dour exterior and not collapsing with laughter when he explained to me that stringent fines can be imposed under the fisheries Acts as the District Court is dealing with matters of urgency such as the freshness of fish, as if that is more important than issues of corruption. If the District Court can impose huge fines, as is constitutionally sound in summary cases under the fisheries Acts, how can the Minister or the Attorney General argue that there is a constitutional difficulty with the District Court imposing a lesser fine in a criminal prosecution involving corruption? If there is a constitutional difficulty with the District Court imposing a fine of £5,000 in corruption cases, there is one heck of a difficulty with it imposing higher fines under the fisheries Acts. There is no provision in the Constitution, of which I am aware, saying that the District Court has limited jurisdiction in criminal matters, except when it is dealing with issues relating to fish.

Corruption can sting as well as fish.

In one case we are dealing with fish and in the other with something fishy.

We must show our determination to root out corruption at every level and we gave very careful consideration to what the maximum term of imprisonment should be. Having given it very careful consideration it was believed a sentence of ten years was not just proportionate but onerous. Ten years is a very long time to spend in prison and a person who serves that sentence is never the same person again. Incarceration for so long a period has a very grave effect so it is not true to say that ten years does not send out the correct signal. It does and anyone convicted of corruption under this legislation and who receives a penalty from the court of ten years will suffer greatly.

Fines are something we can look at. There are difficulties because the Attorney General has said we cannot increase the figure to £5,000. However, I will look at an increase favourably because £1,500 is on the low side. None of this is an exact science but one thing is sure, once an individual is jailed for a period of ten years the message will become clear to everyone that an offence of this kind is regarded with odium and great seriousness. In these circumstances I plead with Deputy Shatter to withdraw his amendment. I do not believe he thinks it is the case that there is a greater degree of culpability in the case of public officials who use their office for personal gain on their own initiative as opposed to those who act corruptly at the instigation of someone else. That is the effect of Deputy Shatter's amendment. I do not subscribe to the view that a ten year maximum sentence sends out the wrong signal, rather it sends out the right signal.

Are you going to consider an adjustment of the fines on Report Stage?

If the Minister is willing to consider the issue of fines on Report Stage I will not put the issue to a vote. I will, however, be putting amendment No. 16 to a vote.

Amendment, by leave, withdrawn.

Amendments Nos. 5 and 6 are related and may be discussed together, by agreement.

I move amendment No. 5:

In page 4, after line 43, to insert the following:

"(vii) a member of the European Parliament representing a constituency in the State,".

Amendment No. 5 relates to section 2 (5) of the Act, which provides definitions of agents, as the phrase is strangely used in the legislation.

It goes back to the 1906 Act again.

It is a phraseology I would prefer we replaced. Effectively, we are talking about persons——

Agents of the Crown——

——who, it is alleged, have been corrupted by others. A distinction is drawn in section 2(5)(b) and section 2(5)(c). There is a related amendment to my amendment No. 5 which would amend section 2(5)(c) after the words "a member of the European Parliament" to read "not representing a constituency in the State". While this sounds really complex, the intent of the amendment will be clear to the Minister so I simply make the proposal and await his reply.

Why is the Minister of a party that still styles itself the republican party using the phraseology of "agent", which refers to an agent of the Crown? It is not simple, in a reading, that these people should be described as agents. If one were reading it for the first time one would ask why the Director of Public Prosecutions is an agent.

It is because the Minister comes from the Kingdom.

Would the Minister tell us if there is a secret about the agent?

007——

We are going to deal with MEPs now are we?

Regarding agents, the question is one of consistent use of terminology in the context of the legislation we are amending. We want to maintain consistency so everybody will understand when they start from the beginning to the end precisely what we are on about.

Like the oath it is an empty formula.

What about the European Parliament?

I did not say the European Parliament was an empty formula.

Deputy Shatter's aim is to include Irish MEPs in section 2(5)(b) and to exclude them from section 2(5)(c). The would have the effect of including them with that category of agent who could be referred to as domestic office holders and officials and excluded from the category of foreign office holders and officials. Some might disagree with that but the reason MEPs are not included among domestic office holders or officials is not because they are never here, but because to have done so would involve making a distinction between Irish MEPs and other MEPs for the purpose of liability for certain offences under the Bill. Nevertheless, I appreciate the reasoning behind the Deputy's amendments, am willing to consider the matter further and will bring forward an amendment to meet his point on Report Stage.

I thank the Minister for his helpful reply in the context of the thinking behind the amendment. I deliberately did not speak at any great length on it. I just draw to the Minister's attention the reality that Irish MEPs are currently entitled, as members of the European Parliament, to attend meetings of the Joint Committee on Foreign Affairs of this House. Some of them do so. It creates an anomaly under the legislation that they are not regarded as domestic office holders——

They are more foreign agents.

——particularly as they represent this State abroad as opposed to being permanently based abroad. That is a distinction we should recognise.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Question proposed; "That section 2 stand part of the Bill."

Do you wish to speak to the question Deputy Howlin?

I am simply prolonging the argument of consolidation.

It was my intention, and the Minister has sought to make some play out of it, to propose an amendment to section 2(4) to amend ten years to 20 years in addition to dealing with it under section 5. I put the Minister on notice that I intend to propose such amendment on Report Stage and when he considers the Bill then I hope he increases the terms of imprisonment under both of these sections so the courts have a broader range of sentencing possibility open to them.

Question put and agreed to.
NEW SECTIONS.

Amendments Nos. 7, 8 and 10 are related and may be discussed together, by agreement. If amendment No. 7 is agreed, amendment No. 10 cannot be moved.

I move amendment No. 7:

In page 5, before section 3, to insert the following new section:

3.-(1) Where in any proceedings against a person to whom this section applies for an offence under the Public Bodies Corrupt Practices Act, 1889, as amended, or the Act of 1906, as amended, it is proved that-

(a) the person received a donation exceeding in value the relevant amount specified in the Electoral Act, 1997, or the Local Elections (Disclosure of Donations and Expenditure) Act, 1999, as appropriate,

(b) the person failed to disclose the donation in accordance with that Act to the Public Offices Commission or the local authority concerned as appropriate, and

(c) the donor had an interest in the person doing any act or making any omission in relation to his or her office or position or his or her principal's affairs or business, the donation shall be deemed to have been given and received corruptly as an inducement to or reward for the person doing any act or making any omission in relation to his or her office or position or his or her principal's affairs or business unless the contrary is proved.

(2) This section applies to the following:

(a) a person required by section 24 of the Electoral Act, 1997, to furnish a donation statement to the Public Offices Commission,

(b) a person required by section 13 of the Local Elections (Disclosure of Donations and Expenditure) Act, 1999, to furnish to the local authority concerned a statement of donations under subsection (1) of that section.

(3) In this section-

'donation'

(a) in relation to persons referred to in section 24 of the Electoral Act, 1997, has the meaning assigned to it by section 22 of that Act,

(b) in relation to persons referred to in section 13 of the Local Elections (Disclosure of Donations and Expenditure) Act, 1999, has the meaning assigned to it by section 2 of that Act;

'donor' means the person who makes a donation or on whose behalf a donation is made.".

This amendment, and amendment No. 8, arise from a commitment I gave on Second Stage in the Dáil, following a thorough review by the Government of measures to improve ethics in public life including consideration of ways to strengthen the provisions of the Prevention of Corruption (Amendment) Bill, 2000. There is no doubt that it is essential public representatives or candidates for election are free from accusations that they have used or would seek to use their position for personal advantage.

The Bill refers to a comprehensive range of offences as well as a wide category of persons who will be subject to its provisions. It makes it an offence to seek or take a bribe or to offer or give a bribe in return for favours. The Government has decided, and I am providing in this amendment, that where a public representative or candidate for election is concerned the bar should be raised somewhat on the probity of such a person. Consequently I am providing for a presumption of corruption in certain circumstances. The position regarding persons holding public office, or officials, is dealt with in amendment No. 8 which I will deal with shortly.

The purpose of the amendment is to provide for a presumption that a public representative or candidate for election has acted corruptly where there is a failure by such a person to declare political donations in accordance with the legislation governing disclosure of donations. Under the amendment, where there are proceedings in being for an offence of corruption a presumption that the person against whom the proceedings are being taken has acted corruptly will arise in the following circumstances. These are that the person, a public representative, or candidate for election at European, national or local level, has received a donation above the amount set out in the Electoral Act, 1997, or the Local Elections (Disclosure of Donations and Expenditure) Act, 1999, and has failed to disclose it in accordance with the appropriate provisions. Where these facts are proven it will be presumed that the donation was given and received corruptly as an inducement or reward to the person acting or refraining from acting in accordance with his or her duties.

Amendment No. 8 is linked to amendmentNo. 7 and complements it through a presumption that a public office holder or official has acted corruptly in certain circumstances. Public office holders and officials have power to make decisions affecting many people. These are too many to list separately, however in the mind of the general public there are certain areas where potential corruption is most likely to arise and it is these which are targeted in the amendment. The areas covered by this amendment are those related to the planning process and those decisions related to the granting of licences or other permits. It is important I clarify certain matters regarding the scope of this presumption.

The amendment deals with circumstances where a presumption of corruption arises whereas the Bill itself, taken with the earlier anti-corruption Acts, deals with all forms of corruption. It does not limit the effectiveness of anti-corruption legislation. The presumption only arises where there are already proceedings in being against the person for corruption and where there is proof of certain matters leading to such a presumption. For this purpose it was therefore decided to link the presumption to certain areas of decision-making thought most likely to be associated in the public mind with the potential for corruption. This seeks to ensure the maintenance of a sense of confidence in the planning process and the award of licences and permits. The amendment provides for a presumption of corruption where proceedings are being taken under the Prevention of Corruption Acts against a person who holds any one of a number of public offices - I will deal with this in more detail - in relation to the exercise of certain functions and where there is proof that he or she received money or other benefits from a person who had an interest in the way those functions are exercised. In those circumstances it will be presumed that money or other benefit was given and received corruptly as an inducement or reward for the person acting or refraining from acting in accordance with his or her duties.

The public officeholders and officials who will be covered by the amendment include local government members, employees of public bodies, Deputies, Senators, the Attorney General, judges and any person employed by or acting on behalf of the public administration of the State. The full list of those covered is specified is section 2(5)(b). As I mentioned the particular areas covered by the amendment are those concerning decisions mainly related to the planning process and those related to the granting of licences or other permits.

Amendment No. 10 in the name of Deputy Howlin seeks to provide for a presumption of corruption in certain cases. It is mainly concerned with the type of conduct covered by the two amendments I have outlined but does not deal with that covered by amendment No. 7 dealing with political donations. Under this amendment there would be a presumption that any money, gift or consideration has been corruptly received where it has been proved that the officeholder received the money, etc., and the donor was a person who had an interest in the officeholder's performance of his or her functions. It seems that the amendment, though well-meaning, may be too wide in its application. The problem is that the connection between the giving of the money and the performance or failure to perform official functions may not be clear. I voiced these concerns on Second Stage and also indicated that such a wide presumption, as suggested by the Deputy's amendment, raises constitutional implications as well as implications under the European Convention of Human Rights. Accordingly amendment No. 7, if taken together with amendment No. 8, will be more effective in dealing with corruption by public representatives than amendment No. 10. I cannot accept the Deputy's amendment.

We should spend some time teasing out these amendments as they will fundamentally alter the way in which a range of people carry out their business and will expose those who act corruptly to very serious sanction, which is absolutely right and proper, but we must make sure we frame this in a way that ensures nobody is inadvertently trapped at the same time.

I strongly welcome the acceptance of the argument I made on Second Stage about the issue of the presumption of corruption. This is at the heart of much of what has come out in terms of the debate on public administration: that is, people who received significant sums of money and then said they did nothing for it although sometimes they acted in a way that was clearly to the donor's benefit. Getting that intrinsic link has been a difficult task and works against the assurance of the highest standards in public administration. It is a reasonable basis on which to say that if someone got a significant sum of money or benefit from a person and then happened to do a great deal of service for that individual there is an obligation on him or her to explain this in a way that shows it is not corruption rather than the burden being put on the prosecuting authority.

The 1916 Act established a presumption of corrupt payment to cover situations where a payment was made by a person holding or seeking a Government contract. This broadens that principle to any payment in relation to a range of other issues such as the issue of a contract, a licence, a permit and so on. As I have only seen these amendments this morning I wish to put some questions to tease out the issues. As I said, I strongly support the principle.

In relation to amendment No. 7, page 6, subsection (1) states that, "in any proceedings against a person to whom this section applies for an offence under the Public Bodies (Corrupt Practices) Act, 1889, as amended, or the Act of 1906, as amended, it is proved that the donor has an interest in the person doing any act or making any omission in relation to his or her office or position or his or her principles, affairs or business. . . " In plain English, is that what we want to say? The donor has an interest in the person, according to this, as opposed to what I understand is meant - an interest in the doing of an act. Would it not be clear to say that the donor has an interest in the doing of any act or making any omission by a person in relation to his or her office? The interest is in the act rather than the person and for clarity it would be interesting to know if that can be dealt with.

Regarding amendment No. 8, where the issue of awarding a contract, licence or permit that might accrue value comes to be considered subsection (2) of amendment No. 8 refers to the functions of a Minister or any other person. My question is this: there is a presumption of corruption where there is a gift or advantage given by somebody who then receives a benefit, that is, a permit and so on, unless the contrary is proved. What if the recipient of the contract is the person himself or herself? There is no gift or payment specifically given. What if one causes a permit or licence to be awarded to oneself? Is that encompassed in the definition of corruption that will be caught in this particular net? We should tease this out until we are quite clear on the matter.

I have substantial concerns about this proposal. Having made the case that where people are convicted of corruption we should be able to impose very stringent sentences I am concerned that in the stampede on the Minister's part to be politically correct these amendments are what I would describe as Haughey-Burke-Lawlor amendments to show that Fianna Fáil is even whiter than white. I am aware that is a political charge and perhaps deals with a serious issue in too satirical a fashion but I am conscious of the difficulty to which Deputy Howlin referred of linking benefits or advantages to subsequent actions by those in political office. I am very conscious that that is a difficulty but I am concerned we are turning criminal law on its head and doing so in a fashion we will regret in a few years.

We operate a criminal jurisprudential system based on the presumption of innocence and that presumption is to allow the prosecution in court proceedings to assemble the essential facts to prove beyond a reasonable doubt that someone is guilty of wrongdoing. We would not be doing our parliamentary duty and voicing our concerns if we did not discuss them here and my concern is that individuals could, by accident, fall into a position where there is a presumption of guilt or corruption. They could then be confronted with a scenario that more resembles the writings of Franz Kafka in books likeThe Trial, where one has to go out to prove a negative - that one is not corrupt and that though one made a decision or carried out an act, one did not do so with a corrupt motive. I am not sure how that negative could be proven. Let me postulate a possible scenario in the context of the Minister’s amendment.

Let us assume a Member above suspicion, a person of great probity, receives a political donation on 2 or 3 January. He or she lists this donation in their declaration to the Public Offices Commission. Then, on 31 December they get a donation from the same individual which, because it arrives in the post, is not opened until January. Due to the busy nature of political life it is not included in their declaration as it does not strike the Member as exceeding the limit in a particular year because he or she regard the second donation as having arrived in a new year, even though it was in fact received in the earlier year. Let us assume there is a change of Government and the Member becomes a Minister in a Department which happens to make a decision of some nature which results in the donor getting a licence. Let us assume the decision made in the Department is made at arm's length and that while it is deemed as being a decision of the Minister, a group of civil servants must assess who gets the licence and a completely objective examination of who would qualify for this licence is made. With the appropriate procedures conducted with great probity the matter, with the civil servants' recommendation, falls on the desk of the Minister to sign off and he does so.

Under this provision, if someone wants to prosecute that Minister, he or she is confronted with the presumption of corruption. I seriously question whether this is the route we should travel. I speak as someone who is browned off, to give the non-technical description, and utterly disillusioned when learning of the events various individuals were involved in during the 1980s and early 1990s when I was a Member. I have a personal view of how the law should deal with issues of this nature and I am concerned that out of our frustration at what we are now learning we could turn the law on its head and, as a consequence, in years to come an innocent person could find themselves in the criminal courts with his or her reputation wrongly destroyed. It is very easy for us as politicians to go along with the mob and say that what the Minister is now proposing is very good. There is a presumption outside the House that most Members are corrupt, venal or plain stupid when the reality in all parties is far from the case. People who think that way about politics would applaud this proposal but we should be careful about it.

I now want to raise some technical issues with the Minister. Based on our constitutional justice system, I want the Minister to tell me if this proposal has been constitutionally proofed by the Attorney General? I believe there are constitutional difficulties with this provision and if the legislation is enacted in this form, with a presumption of guilt built into it in this manner, the President should refer it to the Supreme Court for a constitutional adjudication. What is being done to constitutionally prove this provision? I want assurances that this proposal is not based on the Minister trying to cover up the political embarrassments of Fianna Fáil over events that have been disclosed in the public arena without the necessary checks as to its constitutionality. I am concerned that it goes beyond the point we should go in the areas of criminal law. I am concerned that it may be used as a precedent by the current or subsequent Ministers to start providing presumptions of guilt across a broad range of criminal offences. We are taking a very dangerous route.

I say this in the context of all the frustration that I and Fine Gael Members feel about revelations and events from the 1980s and early 1990s. I say this in the context of being conscious of the difficulties arising when it is established that people received money in questionable circumstances and of identifying anything they did in consideration of receipt of that money to suggest corrupt practices. There is a real difficulty of proof but there is a particular difficulty in creating a presumption of guilt.

If, under this provision, an innocent person is confronted by court proceedings and is presumed to be corrupt because of these provisions, how does the Minister propose that he or she prove innocence? Has the Minister considered the implications of these provisions in the context of the European Convention on Human Rights?

We are getting on in time.

I will be as brief as I can. Regarding Deputy Howlin's specific question in relation to amendment No. 7, section 3(1)(c), in plain English the test here is whether the donor stood to benefit. Did the donor stand to benefit or did he not? That is the basic question at issue.

Regarding amendment No. 8 and Deputy Howlin's question as to whether the recipient is the beneficiary, that question is covered by the substance of section 5 which categorically deals with the individual conferring an advantage on himself. Regarding Deputy Shatter's contribution, I repeat that it would be best if matters which are before the tribunals are dealt with by the tribunals. I find it difficult to understand Deputy Shatter continually adverting to matters which are before the tribunals. In so far as I am concerned, Messrs. Haughey, Burke and Lawlor are matters for the tribunals and so are issues concerning Deputy Lowry, the payments to Fine Gael by Telenor, the awarding of the Esat Digifone licence and the capping. Those issues should be left to the tribunals and I am not going to go into them.

Regarding the matter of persons receiving donations on 1 January and then getting another one on 31 December without realising that declarations should be made in the year the donation is received, Deputy Shatter will accept that that is a rather extreme example, for a start. Even if it were to occur, it should be remembered that we are talking here about a presumption which would arise in a given set of circumstances but only after a charge had been brought against an individual. In other words, it is clear that there would have to be aprima facie case against the individual and only then would the whole issue of a presumption arise. Even when the whole question of there being a presumption arises the accused person would be in a position to rebut the presumption on the balance of probabilities. The individual has to be charged, then a given set of circumstances would have to arise before the presumption comes into play and the presumption is rebuttable. In other words, the presumption certainly does not equal conviction, nor anything like it, nor was that the intention. There must be a case which the DPP believes is a stateable case and the basis of that case is clearly set out in section 1.

Regarding the constitutional proofing of the amendments by the Attorney General, the office has gone into tremendous detail on these measures and they have been the subject of considerable discussion between me and the Attorney General as well as among members of the Government. These measures have been examined in great detail and in so far as the Attorney General can gauge it, he feels the measures dealing with presumption are constitutional. Deputy Shatter knows as well as I and other Members do that one cannot be absolutely certain that any measure passed by the Oireachtas will pass muster with the Supreme Court but the best advice available is that this would pass constitutional muster. In the same way it has been considered in the context of the European Convention on Human Rights.

How does an individual prove his innocence? It must be clear that an individual is not really being asked to prove his innocence so much as the State is being asked to prove its case beyond reasonable doubt. The presumption arises but the presumption is rebuttable on the balance of probabilities. I have now answered all points raised.

I support the principle and have no difficulty supporting the Minister's amendment. I am not a lawyer but my advice is that a presumption of criminal intent is often provided for in criminal law, whether it is aprima facie case as stated and the reality is that that is rebuttable then by someone who, on the balance of probability, can say it did not happen. I accept the Minister’s assurances on that.

In terms of the particulars, I asked a question about the individual benefiting from his actions and the Minister referred me to section 5. The problem with that section is how one would prove the action was corrupt in itself, as that section deals with a public official who does any act in relation to his or her office with the purpose of corruptly obtaining a gift or benefit. What exactly does that mean? In the section we are dealing with, where there is a gift or payment and an action follows, the onus is on the individual to say there is no link there. The presumption we want to establish is that the person will have to prove it - to state the case and rebut the logical connection.

Where someone acts to benefit themselves it is more difficult to prove because one must prove the action was taken for the purpose of getting a benefit or consideration for themselves. I am thinking of a particular case where licences were given by a Minister and one might say the situation was in order and that any other individual would give the licence. However, the general public might deem it quite improper for any public official to give out that level of benefit to themselves. Should we not address that net point in anti-corruption legislation? Where there is any benefit to be conferred on an individual by a Minister or by anyone else, there should be some arm's length mechanism for delivering that benefit without having to prove that it is innately corrupt.

I am not completely happy with the Minister's response but I understand it. I do not want to cover old ground again but I wish to raise two issues.

This section is posited on the assumption that if one receives a donation that is in excess of the amount that one is allowed under existing legislation and one conceals it, there is a presumption of corruption if one goes on to make a decision that benefits the donor. That is the background. It would be possible for a corrupt individual to receive a donation which he discloses, which is within the maximum limits allowed, and still go on and make a decision which may well be corrupt to benefit someone. One could announce to the world in one sense through the Public Offices Commission that one got £4,000 or whatever it is——

Or £500.

If it is £500 or more——

Time is of the essence.

One must disclose anything more than £500 under current law. One can get £20,000 so long as one discloses it. A politician could then go on to make a decision which would benefit someone but there would be no presumption of corruption because he told everyone he got the money first time around. The money could have been received two years before the donor receives a benefit.

In that sense there is a peculiarity about the section as there is a presumption that if one does not declare, one is corrupt and if one does declare one is not. That makes no sense as the issue is not whether one did or did not get the money - the issue is whether one made a decision as a consequence of getting money whether or not one declared it.

I am concerned as, like Deputy Howlin, I first saw this section this morning. It is bad legislation to have to look at a section such as this, which the Minister said he spent months dealing with along with the Attorney General, and we are supposed to accept it this afternoon and nod it through. That is a problem as there is a huge anomaly here.

The second matter relates to the concerns I expressed on the presumption of corruption. Perhaps my scenario about donations in January and December was a bit tortuous but I could well see it happening. Another scenario could happen easily and has occurred in the past, no doubt; not perhaps in the context of corrupt decisions but simply when decisions were made. One receives money from a donor which one declares or not but one receives it. Some time later one is a Minister and makes a decision that a particular company should get a road contract, for example. There is a tendering process and the decision is made but lo and behold, it turns out that the main shareholders in the company hold the shares in trust for someone else, who unknown to the Minister turns out to be his donor. One has a limited liability company given a major Government contract signed off by a Minister and it turns out later that the person who controls the company is the person who gave the Minister a donation. Is a presumption of corruption to arise out of that when one did not know? I would be interested in the Minister's response on this.

This section is so serious that I do not mind whatever time constraints we are on. If we have to have another meeting to tease these provisions out further so be it.

I am in the hands of the committee. Does it wish a brief response from the Minister to what has been said?

I will have no difficulty in returning to this matter. I accept that these are very important provisions. They are very wide-ranging and certainly have implications for those in public life and others covered by the legislation, about which there is no doubt. To reply specifically to the questions which have been raised, to a large extent, Deputy Howlin answered his own question in regard to an individual conferring a benefit on himself or herself. It would be very difficult in such circumstances to make a presumption. Establishing the actual movement of the benefit from one to another can give rise to a presumption. It is, as the Deputy points outs, very difficult where one is dealing with an individual but the substance is still covered by section 5 under which it is certainly possible to prove a case. The presumptions are however extremely difficult.

And the nature of the benefits.

Yes, it is very difficult.

If one made a Member of the House chairperson of a committee for their vote, to be elected to something.

I am not sure that that would be of benefit. Perhaps the Chairman knows.

Deputy Shatter raised the question of concealment. It is the concealment which gives rise to the whole question of the presumption. If there is concealment of the donation, this gives rise to the presumption. It means that something has been concealed and the person therefore has some questions to answer in relation to it. That is all it means, it does not mean that any person can be convicted on foot of a presumption as nobody can be convicted on foot of a presumption alone. No case can be taken unless there is aprima facie case. We are all aware that the Director of Public Prosecutions does not bring cases unless he is convinced that there is a stateable case. It first has to pass this test.

With regard to the specific example which Deputy Shatter gave of a tendering process, the very fact that there was a tendering process would immediately stand to the credit of the accused person. The fact that there was an open competition would be very strong evidence that there may have been no corruption whatsoever. It would be almost conclusive evidence. In those circumstances I do not believe that a case would even be brought, let alone be brought and have a presumption arise. If a case is brought the whole question of how an individual behaved would be a matter for the court, fair and square. I stress that before any presumption could arise there would have to be certain facts, that is to say a stateable case.

This is a matter which will also be addressed on Report Stage. I suggest to the committee that we allow these measures through today and have a very detailed discussion on Report Stage if possible. I accept that this does have very broad implications, as Deputies Howlin and Shatter said, for Members of these Houses and all those to whom the legislation applies.

We have had an extensive debate and there will be an opportunity later to discuss the matter again.

Amendment agreed to.

I move amendment No. 8:

In page 5, before section 3, to insert the following new section:

4.-(1) Where in any proceedings against a person referred to in subsection (5)(b) of section 1 of the Act of 1906 for an offence under the Public Bodies Corrupt Practices Act, 1889, as amended, or the Act of 1906, as amended, it is proved that-

(a) any gift, consideration or advantage has been given to or received by a person,

(b) the person who gave the gift, consideration or advantage or on whose behalf the gift, consideration or advantage was given had an interest in the discharge by the person of any of the functions specified in this section, the gift or consideration or advantage shall be deemed to have been given and received corruptly as an inducement to or reward for the person performing or omitting to perform any of the functions aforesaid unless the contrary is proved.

(2) This section applies to the following functions:

(a) the granting, refusal, withdrawal or revocation by a Minister or an officer of a Minister or by any other person employed by or acting on behalf of the public administration of the State by or under any statute of any licence, permit, certificate, authorisation or similar permission,

(b) the making of any decision relating to the acquisition or sale of property by a Minister or an officer of a Minister or by any other person employed by or acting on behalf of the public administration of the State,

(c) any functions of a Minister or an officer of a Minister or of any other person employed by or acting on behalf of the public administration of the State under the Planning and Development Act, 2000.

(3) In this section-

'functions' includes powers and duties and references to the performance of functions includes as respects powers and duties references to the exercise of functions and the carrying out of duties;

'Minister' means a person who is a Minister of the Government or a Minister of State.".

Amendment agreed to.

I thank the Minister. We will return to the other amendments at a date to be scheduled.

The Select Committee adjourned at 4.55 p.m. sine die.