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

We are resuming on section 3, amendment No. 9. Amendment No. 17 is an alternative. Amendments Nos. 9 and 17 may be discussed together by agreement. Is that agreed? Agreed.

NEW SECTIONS.

I move amendment No. 9:

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

"5.-(1) A judge of the District Court, on hearing evidence on oath given by a member of the Garda Síochána, or a member of the Garda Síochána not below the rank of superintendent, may, if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to the commission of an offence or suspected offence under the Prevention of Corruption Acts, 1889 to 2001, punishable by imprisonment for a term of 5 years or by a more severe penalty ('an offence') is to be found in any place, issue a warrant for the search of that place and any persons found at that place.

(2) A member of the Garda Síochána not below the rank of superintendent shall not issue a search warrant under this section unless he or she is satisfied-

(a) that the search warrant is necessary for the proper investigation of an offence, and

(b) that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court under this section for the issue of the warrant.

(3) A warrant under this section shall be expressed, and shall operate, to authorise a named member of the Garda Síochána, accompanied by such other members or persons as the member thinks necessary, to enter, within one month of the date of issue of the warrant, if necessary by the use of reasonable force, the place named in the warrant, to search it and any persons found at that place and to seize and to retain anything found at that place, or anything found in the possession of a person present at that place at the time of the search, which the said member reasonably believes to be evidence of or relating to the commission of an offence or suspected offence.

(4) A search warrant issued by a member of the Garda Síochána under this section shall cease to have effect after a period of 24 hours has elapsed from the time of the issue of the warrant.

(5) A member of the Garda Síochána acting under the authority of a warrant under this section may-

(a) require any person present at the place where the search is being carried out to give to the member his or her name and address, and

(b) arrest without warrant any person who-

(i) obstructs or attempts to obstruct that member in the carrying out of his or her duties,

(ii) fails to comply with a requirement underparagraph (a), or,

(iii) gives a name or address which the member has reasonable cause for believing is false or misleading.

(6) A person who obstructs or attempts to obstruct a member acting under the authority of a warrant under this section, who fails to comply with a requirement underparagraph (a) of subsection (5), or who gives a false or misleading name or address to a member shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a period not exceeding 12 months or to both.

(7) The power to issue a warrant under this section is without prejudice to any other power conferred by statute for the issue of a warrant for the search of any place or person.".

This amendment provides for the granting of search warrants in relation to the investigation of offences of corruption. On Second Stage in the Dáil I stated that the Government had approved the drafting of a criminal justice Bill which would contain a general provision allowing for the issue of search warrants in connection with the investigation of certain serious offences which would include those created by this Bill. However, given that the criminal justice Bill has yet to be published and in view of the importance of ensuring adequate powers to fully investigate suspicions of corruption, I indicated a willingness to include a search warrant provision in this Bill. This amendment meets that commitment. It will apply to offences under the prevention of corruption Acts which carry a penalty of at least five years imprisonment. Effectively this means all offences under the Acts, except an offence under the provisions of the amendment, which will be a summary offence. The amendment provides that a member of the Garda can apply to a District Court judge for a search warrant which the judge may issue if satisfied that there are reasonable grounds for suspecting that evidence of an offence under the Bill is to be found in any place and authorise the entry and search of the premises and any person found there. As members of the committee are fairly familiar with this matter, there is no necessity for me to go into it in more detail.

Amendment No. 9 is an alternative to the amendment in my name. I accept the Minister's amendment.

Amendment agreed to.
Amendment No. 10 not moved.

I move amendment No. 11:

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

"3. A person may be tried in the State for an offence under this Act if any of the acts alleged to constitute the offence was committed in the State notwithstanding that other of the acts alleged to constitute the offence were committed outside the State.".

This amendment rephrases the existing section 3 in line with the consolidation approach I set out. The Chairman will recall I was arguing for a consolidated unified Bill. No doubt, having reflected on it, the Minister will accept the amendment.

Amendment No. 11 provides that the Irish courts will have jurisdiction to try cases of corruption where any element of the offence occurred within the State, even if some elements were committed abroad. The amendment is almost identical to the terms of section 3 of the Bill but seeks to deal with the issue already addressed in the section. I ask the Deputy to withdraw the amendment on this basis.

This is a consolidation of existing legislation as amplified by section 3. Since the consolidation approach has been resisted I take——

I am in favour of the consolidation approach but we are not in a position to adopt it at this time.

Consolidate me Lord, but not just yet.

Amendment, by leave, withdrawn.
Section 3 agreed to.
NEW SECTION.

I move amendment No. 12:

In page 5, before section 4, to insert the following new section:

"4.-A person shall not be exempt from punishment under this Act by reason of the invalidity of the appointment or election of that person or another person to any office or position.".

Again, I this put this amendment forward on the basis that it is part of the consolidation procedure.

This amendment puts the focus on the provisions of the Prevention of Corruption Acts, 1889 to1995, as much for what is retained from the earlier Acts as for what is omitted. I said previously that the Deputy's approach would result in useful provisions of the earlier Acts being lost and gave the example of section of 2 of the 1889 Act. Unfortunately, I cannot accept the amendment.

I am not pursuing those but hope the Minister will, in future, conform with consolidation where there is not a huge volume of law to be consolidated rather than have enactments going back not only to the last century but to the previous one for the public and lawyers to deal with.

In view of the Deputy's earlier assertion that I had passed my sell-by date it seems an unlikely task for me to have to undertake.

Amendment, by leave, withdrawn.
SECTION 4.

I move amendment No. 13:

In page 5, subsection (2), line 36, after "(5)" to insert "(a) or”.

This amendment seeks to amend section 4 to provide that employees generally or a person acting on behalf of another would be subject to the jurisdiction of the Irish courts for offences of corruption committed entirely abroad. The section only applies to Irish public officials. This was provided for on public policy grounds. The Government has an interest in ensuring confidence in relation to public administration and a particular interest in ensuring those involved in it who act corruptly in relation to their duties, whether in the State or outside, are amenable to the jurisdiction of the Irish courts. While the Government would wish to see all those involved in corruption punished accordingly, it seems that where the offence does not involve office holders or officials, it is appropriate to leave the matter to be dealt with by the courts of the state where the offences occurred and where the evidence is to be found. In other words, we will allow cases like this to be dealt with in the states where the corruption occurs because it would be easier to bring forward evidence and so on.

Amendment, by leave, withdrawn.
Section 4 agreed to.
NEW SECTION.

I move amendment No. 14:

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

"5.-(1) A public official who does any act in relation to his or her office or position for the purpose of corruptly obtaining a gift, consideration or advantage for himself, herself or any other person, shall be guilty of an offence.

(2) A public official who does outside the State an act that, if done in the State, would constitute an offence under this Act, shall be guilty of an offence.".

This is a serious amendment which I hope the Minister will accept or, at least, reflect on. This new section which I propose to insert before section 5 would extend the existing section 5 by making it extraterritorial. Section 4 does not apply because it applies to offences under the 1906 Act. It relates to corruption by a public official. Section 5(1) reads:

A public official who does any act in relation to his or her office or position for the purpose of corruptly obtaining a gift, consideration or advantage for himself, herself or any other person, shall be guilty of an offence.

This is the germane point. "A public official who does outside the State an act that, if done in the State, would constitute an offence under this Act shall be guilty of an offence". That ensures that public officials, even when they are acting outside the State, are subject to the terms of this provision.

I agree with what Deputy Howlin is trying to achieve but sections 4 and 5 would appear to encompass what he is seeking to achieve.

I understand section 4 applies only in so far as the 1906 Act applies. Again, because this is not a consolidation Act it is difficult to read back through statute, but my advice is that what the Minister says is not correct.

My advice is different. Section 4 deals with corruption occurring outside the State. Section 5 deals with corruption in office.

No. The offences listed in section 4 are those contained in the 1906 Act, as I understand it.

That is the 1906 Act as amended by the legislation now before the committee. If the Deputy looks at section 2(2)——

Section 4 states that a person who does outside the State an act which, if done in the State, would be an offence under section 1 of the Act of 1906, shall be guilty of an offence.

That is in section 2 of this Bill.

As I understand it, section 1 of the 1906 Act, as the original section, is now being replaced by the provision of section 2 of this Bill.

My saying that proves that I am finely tuned in as to what this Act is about and——

That applies to all of us.

It probably also establishes the case for consolidation which. These Acts are all over the place. The Deputy is right. There are many of them and consolidation is the way out, but we do not have the time at this point to do it.

On that issue, there is a solid case for consolidation and I urge the Minister to consolidate as frequently as possible.

That point was made very cogently on the last occasion by everybody concerned, and everybody agreed with it.

It is not being done, however. That is the problem. If one reads a section of a new enactment which states what is an offence under section 1 of the Act of 1906, one assumes one looks back to the Act of 1906 to determine what is the offence while, in a previous section of the same Act, we are amending the 1906 Act to have a different definition.

I assure Deputy Howlin that later this year we will have a restatement of corruption law in one volume. It will not be a consolidation Act but, at the very least, people will be able to say what it means. I know what Deputy Howlin is saying. I served as Minister and in Opposition dealing with legislation like this and when it is all over the place, it is difficult to know where something is and the reason it should be there. At the very least we will restate the law this year. We will get around to that.

Could I make a constructive suggestion in relation to section 4, which the Minister might consider for Report Stage? In the context of line 3 of section 4(1)——

Is that as amended?

Yes, under section 1 of the Act of 1906, I suggest to the Minister that on Report Stage he would insert an amendment which states, in brackets, "as amended by substitution in section 2 of this Act". That makes the law somewhat more understandable for people who have to use the legislation.

We can do that.

Amendment, by leave, withdrawn.
SECTION 5.

I move amendment No. 15:

In page 5, subsection (1)(a), line 41, to delete “£1,500” and substitute “£5,000”.

Amendment put and declared lost.

I move amendment No. 16:

In page 6, subsection (1)(b), line 2, to delete “10” and substitute “20”.

On this amendment, because of the huge financial gains people can make from acting in a corrupt way, particularly in public office, and the enormous implications that acting in a corrupt way may have for the State and the taxpayers, it is important to increase the maximum penalty from ten years to 20 years as is proposed here.

Amendment put.
The Committee divided: Tá, 7; Níl, 8.

  • Barnes, Monica.
  • Fitzgerald, Frances.
  • Higgins, Jim.
  • Howlin, Brendan.
  • Shatter, Alan.
  • Timmins, William.
  • Wall, Jack.

Níl

  • Ardagh, Seán.
  • Cooper-Flynn, Beverley.
  • Killeen, Tony.
  • McGennis, Marian.
  • McGuinness, John.
  • Moynihan, Michael.
  • O’Donoghue, John.
  • Wright, G. V.
NEW SECTION.

I move amendment No. 18:

In page 6, before section 6, to insert the following new section:

"6.-(1) Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any wilful neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its members,subsection (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.”.

This is a consolidating amendment. I have spoken of a consolidation approach for a long time and I have made an unanswerable case for it. The Minister has conceded entirely and has just said, "not today".

Not tonight.

How about tomorrow?

This amendment is identical to section 6 which deals with the liability of companies and of persons holding certain positions within them for offences of corruption. I am glad Deputy Howlin and I are at one and agree on many of the measures needed to ensure that our laws are effective in combating corruption. Nonetheless, I remain convinced there is no need for the amendment since the matter seems to be covered by section 6. In those circumstances, I cannot support it.

I withdraw the amendment.

Amendment, by leave, withdrawn.
Section 6 agreed to.
NEW SECTIONS.

I move amendment No. 19:

In page 6, before section 7, to insert the following new section:

"7.-A person guilty of an offence under this Act shall be liable-

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 10 years or to both.”.

This amendment like the previous one proposes to insert penalties that would be required if the consolidation approach for which I argued had been accepted. As it has not, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 21 is consequential to amendment No. 20 and they may be taken together by agreement.

I move amendment No. 20:

In page 6, before section 7, to insert the following new section:

"7.-The Prevention of Corruption Acts, 1889 to 1995, are hereby repealed.".

These amendments seek to repeal the old statutes from 1889 to 1995 as they would have been restated in the consolidated Bill had all the amendments I tabled been accepted. As they have not been, I do not propose to repeal them. I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
SECTION 7.

I move amendment No. 22:

In page 6, after line 25, to insert the following subsection:

"(3) This Act shall come into operation on such day or days as, by order or orders made by the Minister for Justice, Equality and Law Reform under this section, may be fixed therefor either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes and difference provisions.".

The purpose of the amendment is to allow me, as Minister, to make orders to bring the provisions of the Bill into force either generally or with regard to specific provisions.

Amendment agreed to.
Section 7, as amended, agreed to.

We shall now proceed to consider section 1 and the amendments thereto, the taking of which was postponed earlier.

NEW SECTIONS.

I move amendment No. 1:

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

"1.-Regard shall be had in the interpretation of this Act to the instruments mentioned in the long title to this Act.".

This is a technical amendment to refer in the title to the conventions of 1997 and 1999 mentioned in the long title on page 3 of the Bill, lines 5 to 23. Why not also list the text of the conventions in the Schedule? Those are the two changes I propose for the purposes of clarity.

I cannot accept the amendment. The intention of the Bill we are discussing is to update our anti-corruption law to make it more responsive to modern conditions and to enable Ireland to ratify a number of important international conventions. Broadly speaking, they require us to provide that certain types of activities would be offences under our laws, that they would apply to domestic as well as foreign office holders and officials, that our nationals shall be amenable to the jurisdiction of the Irish courts even for offences committed by them abroad and that the Irish courts will also have jurisdiction where an offence occurs partly in the State and partly abroad.

The Bill contains provisions to give effect to these in domestic law and, accordingly, will enable Ireland to ratify all three conventions. For example, the EU convention covers active or passive corruption of or by community or national officials, domestic legislators, Ministers and judges as well as members of the European Commission, the European Parliament, the Court of Justice and the Court of Auditors. Corporate liability is also covered. The Council of Europe convention deals with active and passive corruption and it and the OECD convention have provisions relating to corporate liability.

Offences of active and passive corruption are set out in section 2(2) and (3). The categories of officials who may commit these offences are among those included in section 2(5). Corruption occurring partially in the State, corruption occurring wholly outside the State involving Irish officials and corporate liability are contained in sections 3, 4 and 6, respectively.

It is important to point out that we are not incorporating the convention into Irish law and, therefore, it is not necessary to provide that the court should have regard to it in interpreting provisions of the Bill. The Bill taken together with the earlier Prevention of Corruption Acts contains definitions of important words and phrases used in the Acts or in this Bill. These are supplemented, where necessary or appropriate, by the interpretation Act and it is for these reasons that I cannot accept the amendment.

I am fully cognisant of the fact that we are not transposing the convention into domestic law. I want a clear indication that in the interpretation of the Bill, once enacted, regard will be had to the conventions cited in the long title. It is not clear from the Minister's response why that is not a proper and correct thing to do.

The objective of the exercise is to ensure the offences referred to in the convention are specifically put into legislation here. To a large extent, one could say we are lifting the offences in the convention and putting them into the statute. The Deputy has been a strong advocate of consolidation and will appreciate that were I to refer backwards and forwards to a convention as opposed to using the direct language of the convention in so far as the offences are concerned in the legislation, I might only sow further seeds of confusion. I am taking the offences set out in the convention and including them in the Bill. This is perhaps the more lucid way to proceed.

I will not labour the point.

The Minister should adopt the conventional approach of consolidating.

I have explained the situation in relation to consolidation on a number of occasions.

Amendment, by leave, withdrawn.

As amendment No. 23 is consequential on amendment No. 2, they may be discussed together. Is that agreed? Agreed.

I move amendment No. 2:

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

"1.-(1) In this Act-

'act' includes omission or failure to act and a reference to the doing or commission of an act includes a reference to the making of an omission, and any cognate words shall be construed accordingly;

'advantage' includes-

(a) a right, privilege, office or dignity and any forbearance to demand money or money’s worth or a valuable thing,

(b) any aid, vote, consent or influence or pretended aid, vote, consent or influence,

(c) any promise or procurement of or agreement or endeavour to procure, or the holding out of any expectation of, any gift, loan, fee, reward or other thing aforesaid, or other advantage and the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage;

'agent' includes-

(a) any person employed by or acting for another,

(b) a public official, and

(c) (i) a member of the government of any other state,

(ii) a member of a parliament, regional or national, of any other state,

(iii) a member of the European Parliament,

(iv) a member of the Court of Auditors of the European Communities,

(v) a member of the Commission of the European Communities,

(vi) a public prosecutor in any other state,

(vii) a judge of a court in any other state,

(viii) a judge of any court established under an international agreement to which the State is a party,

(ix) a member of, or any other person employed by or acting for or on behalf of, any body established under an international agreement to which the State is a party, and

(x) any other person employed by or acting on behalf of the public administration of any other state;

'consideration' includes valuable consideration of any kind;

'document' includes any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Act, 1988) are held, any other form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically and anything that is a part or a copy, in any form of any of the foregoing or is a combination of two or more of the foregoing;

'functions' includes powers and duties and references to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties;

'principal' includes an employer;

'public body' shall be construed in accordance with the Schedule;

'public official' means-

(a) the President,

(b) a Minister of the Government or a Minister of State,

(c) the Attorney General,

(d) a member of Dáil Éireann or Seanad Éireann,

(e) (i) a director, within the meaning of the Companies Acts, 1963 to 1990, of a public body,

(ii) in the case of a public body that is not a company (within the meaning of those Acts), a person who is a member of it or a member of any board or other body that controls, manages or administers it, and

(iii) a person who occupies a position of employment in a public body,

(f) (i) a special advisor appointed under section 11 of the Public Service Management Act, 1997,

(ii) a person employed by a member of Dáil Éireann or Seanad Éireann in his or her capacity as such or by a political party registered in the Register of Political Parties,

(g) the Comptroller and Auditor General,

(h) the Director of Public Prosecutions,

(i) the Ombudsman,

(j) a judge of a court in the State,

(k) a member of the Defence Forces,

(l) a member of the Garda Síochána,

(m) any other person employed by or acting on behalf of the public administration of the State.

(2) In this Act-

(a) a reference to a section or Schedule is a reference to a section of, or the Schedule to, this Act unless it is indicated that reference to some other provision is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.”.

This is a long scheduling of interpretation that would be relevant if the consolidation approach were accepted. It would give definition to many issues not now encompassed within the Bill. As the consolidation argument has not been accepted by the Minister, I withdraw the amendment.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Amendment No. 23 not moved.
Title agreed to.
Bill reported with amendments.

I thank the Minister and his officials for attending the meeting.