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-
(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.