I welcome the Minister for Justice, Equality and Law Reform and his officials to the meeting. The members have already received a copy of the briefing note from the Department as well as copies of the relevant conventions and the Minister's speaking note.
International Conventions: Ministerial Presentation.
I thank the committee for dealing with this resolution in such a timely manner. As Members will be aware, a motion to approve the terms of three anti-corruption conventions was moved in Dáil Éireann on Tuesday, 3 December 2002 and agreed without debate referring the terms of the conventions for approval to this committee. That motion is required in order to satisfy the requirements of Article 29.5.2° of the Constitution which provides that the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann. Subject to the terms of the conventions being approved and the motion passed in due course, Ireland will then be in a position to ratify the three conventions. The three conventions which are the subject of the motion are: a 1997 EU Convention against Corruption involving Officials of the European Communities or Officials of Member States of the European Union; a 1997 DECD Convention on Bribery of Foreign Public Officials in International Business Transactions; and a 1999 Council of Europe Criminal Law Convention on Corruption.
I will give some details about these three conventions. The EU Convention was adopted by the European Council on 26 May 1997. It aims to complement national measures to combat fraud and corruption of public officials. It was thought desirable in circumstances where the European Union was tightening links between its member states and in the context of protecting the Union's own institutions and staff, that bribery and corrupt conduct aimed at officials of other member states should be criminalised in the same way that bribery and corruption of national officials are dealt with by states. It deals with active and passive corruption of or by Community or national officials, including members of the European Commission, the European Parliament, the Court of Justice and the Court of Auditors. It requires member states to take the necessary measures to criminalise such activities, to establish jurisdiction where there is a connection with the state and to co-operate with other member states. The convention deals with corruption by an official who requests or receives advantage in return for acting or refraining from acting in accordance with his or her duty, which it terms "passive corruption", and corruption of an official by others who promise or give advantage in return for that official acting or refraining from acting in accordance with his or her duty, which it terms "active corruption".
The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions was adopted by the OECD on 21 November 1997. The convention deals with "active bribery", meaning the offence committed by the person who promises or gives the bribe, regardless of whether the recipient will have invited the bribe. The substantive article in the convention provides for the criminalisation of the bribery of a foreign public official in order to obtain or retain business or other improper advantage in the conduct of international business. "Foreign public official" is defined to include anyone holding a legislative, administrative or judicial office of a foreign country, and officials or agents of a public international organisation, where the offence is committed in whole or in part in its territory. Such offence includes promising or giving undue pecuniary or other advantage to such officials in order to either obtain or to retain business or other improper advantage in the conduct of international business. Article 8 of the convention is related to paragraph V of the 1997 OECD recommendation, which all parties have accepted, and contains a series of recommendations concerning accounting requirements, independent external audit and internal company controls. Provision is also made for mutual legal assistance, extradition and a monitoring and follow-up mechanism to promote the full implementation of the convention.
The third convention, the Council of Europe Criminal Law Convention on Corruption was adopted by the Council of Europe on 27 January 1999. The Convention aims principally to develop common standards concerning corruption offences among signatory states. The substantive Articles deal with the criminalisation of corruption involving domestic and foreign officials, domestic and foreign parliamentarians, officials of international organisations, members of international parliamentary assemblies, and judges and officials of international courts, and, corruption in the private sector.
The convention includes provisions on trading in influence and on money laundering and accounting offences connected with corruption. Provision is also made for mutual legal assistance and extradition. There is a monitoring and follow-up mechanism to promote the full implementation of the Convention, and this is operated by GRECO, (the Council of Europe Group of States against Corruption), of which Ireland is a founder member.
The Irish law on corruption is set out in the Prevention of Corruption Acts, 1889 to 2001. Briefly summarised, the legislation encompasses five statutes: the Public Bodies Corrupt Practices Act, 1889, as amended, criminalises the corruption of or by certain national officeholders, such as Ministers, as well as public servants; the Prevention of Corruption Act, 1906, as amended, is more widely cast, as it applies not only to the same categories as the 1889 Act, but also to the corruption by or of "agents", who are defined as including any person employed by or acting for another - this wide definition catches not only national officeholders and public and civil servants, who are covered in any event, but also applies to employees in the private sector; the Prevention of Corruption Act, 1916, applies a rebuttable presumption of corruption to benefits received by persons charged with corruption in relation to public contracts; the Ethics in Public Office Act, 1995, amended the Prevention of Corruption Acts in a number of respects, such as increasing the penalties for corruption to a maximum of seven years imprisonment and a fine of £50,000 (€63,487), and it also amended the definition of agent under the 1906 Act: and the Prevention of Corruption Act, 2001, which was enacted to strengthen the existing law and to make the changes necessary to enable Ireland to ratify the three conventions.
The Prevention of Corruption Act, 2001, made technical improvements to the wording of the offence of corruption in the 1906 Act and created a new offence of corruption in office. The new offence closed a gap in the law on corruption by criminalising any act or omission by an Irish officeholder or official done with the intention of corruptly obtaining a gift, consideration or advantage for that officeholder or official or any other person. The Act also increased the maximum punishment for offences of corruption from seven years imprisonment to ten years and from a fine of £50,000, €63,487, to an unlimited fine.
The conventions oblige Ireland to apply its laws on corruption to a wide range of national and foreign officeholders and officials. A number of these were already covered by the Prevention of Corruption Acts, 1889 to 1995, but others were not. However, the Prevention of Corruption (Amendment) Act, 2001, extended the scope of the Prevention of Corruption Acts to those categories of persons who were not currently covered, such as Members of the Dáil and Seanad - as distinct from Ministers - and judges, as well as foreign officeholders. It further amended the definition of agent by making it more comprehensive.
The definition of agent is extended to cover categories of officeholders and officials, both national and foreign, not previously covered. The revised offence will apply not only to corruption of or by an agent, but also to corruption of or by a third party with a view to influencing the conduct of an agent. In addition, the maximum penalty for the offence of corruption is increased to ten years imprisonment and/or an unlimited fine.
Among other features of the Act is a presumption of corruption in certain circumstances, such as a failure to disclose political donations or where a person exercising certain functions receives money or other benefit from a person who has an interest in the exercise of those functions.
The Act also creates a new offence of corruption in office and establishes the liability of officers of companies for offences of corruption. It gives Irish courts jurisdiction in cases where any element of the offence occurs in the State or where an Irish officeholder or official is involved. It also extends Irish jurisdiction extraterritorially to corruption abroad involving Irish officeholders or officials. Normally, Irish criminal law is territorial in its jurisdiction, but there can be exceptions. If the offence was limited to the national territory, an Irish officeholder or official could evade the Prevention of Corruption Acts by the simple expedient of accepting a bribe while outside Ireland. The Act also makes provision for the issue of search warrants.
While there is provision in EU and Council of Europe conventions for reservations restricting the scope of application to be entered at the time of ratification, Ireland does not propose to make any such reservations because our anti-corruption legislation is widely cast and allows us to apply the terms of the conventions fully. Under Article 29.5.2° of the Constitution, any international agreement must, if by its terms it imposes a charge on public funds, have its terms approved by Dáil Éireann before it can bind the State. I am, therefore, seeking approval by Dáil Éireann of the terms of the treaty.
I thank the Minister. I welcome Deputy John Bruton and call on him to speak.
My primary reason for attending is to give the Minister a report in relation to the EU Council of Justice and Home Affairs. Now that I am here, however, I am quite happy to speak on this subject.
We have been rather slow in ratifying the OECD convention, which has been open for ratification since 1997. The Council of Europe convention is somewhat more recent. My first question relates to a matter for which the Minister is not answerable personally, but for which he has responsibility in his corporate manifestation. Why was there such a delay? At least one of these conventions was signed by the then Minister, former Deputy Mervyn Taylor, who has not been a Member of the Dáil since 1997. Clearly, there has been a long delay in the arrival of this matter before the committee.
Does the Minister agree that this delay reveals the inadequacy of conventions as a method of effecting change on a Europe-wide basis, in the sense that conventions have no direct applicability? First, they have to be negotiated, then opened for signature and it is only when a certain proportion of signatory countries have ratified it that a convention comes into effect. Does the Minister agree that the experience of conventions as a means of bringing legislation into effect at European level in relation to broad areas of justice and home affairs has been inefficient? I understand, subject to correction, that, out of some 20 conventions, only two or three have been brought into effect at this stage. I accept, however, that some of them date back to the Treaty of Maastricht, which established a special pillar for dealing with these matters by means of conventions.
While these conventions are welcome, they are painfully slow as a means of dealing with urgent problems. Does the Minister agree that these particular conventions are coming before us rather more quickly than most other conventions? In the late 1990s, there was a strong American push for the enactment of legislation on corruption, which was a particular concern of the US authorities at that time. That led to the OECD work in this regard. Were it not for American pressure, this matter would not yet have come before this committee.
I will now focus in on one or two of the conventions before us. The Council of Europe Criminal Law Convention on Corruption contains a number of provisions to the effect that each country shall adopt such legislation and other measures as may be necessary to achieve various objectives, such as curbing trading influence. It also deals with sanctions, etc. Is it now the position that our legislation - the 2001 legislation and the earlier Act - leaves us in full compliance with the Council of Europe convention of 1999 or will we be required to implement further legislation in order to fulfil the obligations imposed by ratification? The Minister did not quite say so, but, reading between the lines, I believe that may be the case. I would welcome clarification in that regard.
The Minister also said the Prevention of Corruption Act, 2001, makes provision for the issue of search warrants. Will he outline what would happen in a situation where, for example, an Italian businessman bribed a German public official in a Dublin hotel and some relevant records were left in the room in which they had met? That is not a fanciful situation; it is exactly the type of situation with which the system is supposed to deal. How would the Italian or German police go about obtaining a search warrant? To whom would they apply and what restrictions are applicable? Are there not significant differences between what is accepted as evidence in one jurisdiction and another? There may also be different requirements as to what is acceptable in terms of the requirements for a search to be valid for the purposes of getting evidence. For the three examples of Ireland, Germany and Italy, are the evidentiary requirements not quite different? Will the search warrant provision be effective in light of the divergence and what measures are contemplated to ensure there is inter-operability of evidence gathering in different jurisdictions in pursuit of corruption?
Will the Minister comment on the fact that there are three different conventions before us, each coming from a different international organisation: one from the European Union, one from the Council of Europe and one from the OECD? I realise these institutions work more or less in communication with one another but is there a lack of efficiency in the apparent duplication of international activity? I realise that the membership of these organisations and their relative powers are different. The Council of Europe operates on a purely intergovernmental basis with the European Union and, though it operates in that way in this field also, it is more integrated in other areas. Is there an issue here that warrants further comment from the Minister?
The Minister will be aware that one of the concerns felt in some countries - not one that I share - is that the European Union is only able to defend its financial interests because it does not have the aid of a European public prosecutor. It is reliant on the prosecutors of individual countries to take action. There is an established practice among the current 15 member states in pursuing cases even though the systems are different. With the extension to include ten other members, the Minister might comment on whether, to give full effect to these, there is a case for considering a European public prosecutor.
I welcome the Minster and his officials. I am glad we are looking at all the documentation the Minister will take to Europe so that he will have the benefit of our views prior to doing so later today.
At the moment I am just defending three conventions.
I thought I would get that in first. Arising from the initial remarks of Deputy Bruton, why is this being brought so urgently to the Dáil at this time? Why is the motion to be finalised and passed today if two of the conventions were signed in 1997 and the other in 1999? What is the relevance of the provisions in the conventions if some are five and three years old?
There is an argument for consolidation with regard to provisions which overlap to a considerable degree. If we do not sign a convention immediately, it loses its relevance as it is likely to be overtaken by domestic legislation and by other international conventions. It is possible that provisions are signed up to that overlap in different areas. Will the Minister explain the implications with regard to the fact that we have three documents with similar provisions in each.
What is the charge on the public funds, what are our responsibilities with regard to that and what figure are we talking about? With regard to the Prevention of Corruption (Amendment) Act, 2001, have we covered all of these matters domestically and to what extent does that legislation apply to our subjects abroad or in an international arena? Do we need these conventions to be covered by the proposals dealing with corruption, bribery and money laundering?
What policing is envisaged with regard to the provisions? Nobody would disagree with any of the provisions and it has been seen domestically how much the area of corruption has come to the fore in public life in recent years. However, there is no similar knowledge of the international situation in this category of crime with regard to officials abroad, and it is hard to envisage what method of policing could identify it. For example, what is the situation with regard to embassy personnel and public officials in the various international fora mentioned, particularly the European Union?
What co-operation takes place with regard to this matter. Ireland is presumably one of the last countries to sign these conventions. Can the Minister indicate how other countries operate the legislation on the conventions? Have people been brought to justice on foot of any of the provisions of these conventions? Money laundering, covered by one or two of the conventions, seems an ideal offence to be focused on. Has the Minister any examples of crime taking place in this area by any of our citizens or by citizens of other countries represented in an official capacity here?
Much of what I wanted to ask about has been dealt with already but I am particularly interested in how search warrants would work. Deputy Bruton referred already to the procedure by which a search warrant would be obtained and approved. How does the Minister envisage that this will work on the ground? If, as Deputy Bruton outlined, there was an incident in a hotel in Dublin, what procedure would apply? Would the evidence not long since have evaporated by the time possible measures were taken?
When will the conventions come into effect or are they already in place? Do they need the ratification of all member states to be brought into being? Is there a particular rush at this time because there is something that needs to be pounced on? Is there evidence that corruption is taking place and do the conventions need to be ratified quickly to deal with the allegations?
The other questions that have been asked included many of my queries. Have other countries adapted their anti-corruption legislation? Is Ireland the last country to update its legislation in this area?
I notice that the first convention refers to MEPs, the European Court of Justice, the European Court of Auditors and the European Commission. Does the fact that the Convention on Europe is not included mean that its members are incorruptible? Perhaps the convention was established after it was drafted.
I do not know the answer to the Chairman's question, but I imagine that the Convention on Europe is not seen as a legislative body in the same sense as the others, but as an international advisory body. The convention's decisions do not have direct effect and the possible corruption of its members is not seen as equal to the corruption of those whose decisions have direct legal effect.
Eleven member states - Belgium, Denmark, Greece, Spain, France, Netherlands, Austria, Portugal, Finland, Sweden and the United Kingdom - have ratified the EU Convention, which means that four states, including Ireland, have yet to ratify it. The convention becomes effective between the member states as they ratify it. The OECD Convention has been ratified by 34 of the OECD countries and 19 countries have ratified the Council of Europe Convention. Mixed progress has been made in relation to these matters.
Deputy Bruton asked why it has taken so long to reach this point, a question that was echoed by a number of other members. Members should remember that we are dealing with three conventions. According to the Constitution, no EU agreement has the force of law in Ireland, unlike other countries, unless it is provided for in legislation. Under the constitutions of many other countries, international treaties that have been ratified come between the constitution and ordinary legislation in the order of importance. It is a principle of law in many civil law countries that international treaty obligations that are ratified have effect and are automatically superior to ordinary legislative law. There is a different arrangement in Ireland, as our constitutional theory is that the people are sovereign and the State can only enter into agreements that are consistent with the Constitution in the first instance. Agreements have no force of law unless they are translated into Irish law by an Act of the Oireachtas. Other countries, not including the United Kingdom, can make faster progress than Ireland because they have a different constitutional theory.
Some of these conventions date back to 1997 and I had some experience of their gestation period as Attorney General. It was known that we had to put in place legislation that would enable us to ratify legislation relating to corruption. In the course of my term as Attorney General, changes were made to our anti-corruption laws as part of a package announced by the Taoiseach consisting of about five measures to improve the quality of public administration in Ireland and to strengthen our anti-corruption laws. In that context, it was decided to bring forward the Prevention of Corruption (Amendment) Bill, which contains provisions for domestic regulations and the three conventions about which I have been speaking. The Bill had a typical rate of progress - it was passed on 9 July 2001 and came into effect, with the exception of one subsection, on 20 November that year, which was not remarkably slow. It was difficult to get parliamentary time to ratify these conventions due to the disruption caused by the general election and the delay in establishing committees. I regret that it has taken so long to reach this stage, but it is not untypical.
Deputy John Bruton asked about American pressure and it is true that the US was anxious about the matter. The immediate reason we are moving at speed at this point is that the OECD has asked us to ratify the conventions. There is no reason we should not do so as the legislative base for ratification has been in place for some time.
All of it.
Yes.
Does the 2001 Act cover everything?
Its long title refers to the fact that it enables us to ratify one of these conventions.
Deputy Bruton also outlined a possible scene in the Shelbourne Hotel, but I have forgotten the exact detail. If an offence is committed under Irish law, intervention or non-intervention through the search warrant procedure or mutual legal assistance is not relevant. The Garda will act if it has information about an offence being committed. I am not referring to a case similar to that outlined by Deputy Bruton and I do not want to give a misleading example. Something could take place in Ireland which is not an offence under Irish law, but which would cause a foreign prosecuting authority such as an inquiring magistrate, typically in a civil law country, to seek evidence. In such circumstances, the magistrate would apply for assistance from the State under our mutual legal assistance provisions. The body on the receiving end in Ireland - the body that receives foreign requests - is the Department of Justice, Equality and Law Reform. The body on the outgoing end, however, as we have a different system, is the Director of Public Prosecutions, who acts on outgoing requests from the State.
Under normal mutual legal assistance provisions, an application would be made to a District Court judge for a search warrant if foreign authorities sought evidence in an Irish residence, for example, but if the Garda did not intend to use its domestic powers to deal with it. The application would go through in the ordinary way if it was established that there was an evidential basis for the search. The Department of Justice, Equality and Law Reform is the receiving post for all mutual assistance applications from foreign jurisdictions with which we co-operate, as provided for in the Criminal Justice Act, 1994. It is an effective system. As it does not receive much publicity, people may not appreciate that the mutual assistance mechanism is used frequently by many police forces. Many orders are made on a routine basis under mutual assistance provisions.
Why does it go through the Department, rather than going directly from police force to police force?
One deals with judicial requests from examining magistrates under the civil law provisions of most foreign jurisdictions. There has to be a safeguard - somebody has to take responsibility for requests made from one state to another; for example, if a policeman in Bucharest asks a policeman in Ballybofey to search a house.
When we were talking about the Europol convention last week, the Minister indicated that there is a special unit at Garda headquarters. I received the impression that the corresponding unit in the police forces of Germany or the United Kingdom would deal with the Irish office.
Europol works at the police intelligence level whereas in Ireland one has to get judicial authority to have someone's house searched. We cannot have a system that allows people outside the country to seek a house search on the basis of a telephone call. That would be a Big Brother scenario which would be very difficult to justify by saying that one received a telephone call from somewhere in Europe. An example of the normal method would be where the Crown Prosecution Service in England makes its request to Ireland through mutual assistance. In the case of most European states, a request for evidence from Ireland would be made by an examining magistrate.
Deputy Bruton is right to make the point that under the third pillar - the justice and home affairs pillar established primarily under the Amsterdam treaty - a number of different measures are available to the Council. These include common actions, Council decisions, framework decisions and conventions. A series of provisions are made under Title 6 of the Amsterdam treaty. Framework decisions are stronger than conventions and the vogue in Europe is to opt for them as they are more analogous to a directive. That is not the case with opening conventions and requesting people to sign them. Deputy Bruton is correct in saying we are bound to see more use being made of framework decisions as opposed to conventions as no member state is bound by a Council decision to open a convention which allows for enhanced co-operation by some who, if they wish, can opt in or out. Once a framework decision is adopted onthe basis of unanimity, it is binding as to its ultimate effect, if not as to the method of implementation.
Deputy Bruton raised his red cape before me with regard to the European public prosecutor, a matter on which I would be glad to spend an hour or two.
We will return to it another day.
Deputy Costello asked the reason this should happen now. The OECD is pressing us.
Why is it pressing us now when it did not press us before?
I presume it wants as many member states to sign up as possible. It is a very important measure which I am not in the slightest minimising. OECD countries are putting in place a measure to prevent corruption being used as an aid to international trade. The Deputy asked if we could consolidate it. While the Council of Europe is separate from the European Union and the OECD is separate from both, one is bound to have a series of measures being proposed internationally which the State must address in different ways by ratifying each on a different basis. While the organisations have overlapping memberships, they are different organisations doing different things. It is possible that the European Union will be developed to the point where it will simply accede en bloc to some of these measures at which time there will not be a requirement for individual states to ratify individually through individual legislative arrangements.
Regarding the charge on public funds, we are undertaking mutual assistance obligations under OECD and Council of Europe conventions. If we undertake to carry out searches and conduct court proceedings, it will cost money. Extradition requests under Article 27 of the OECD convention can also cost money as arrests and extraditions must be made. Provisions for evaluation and monitoring of the conventions could also involve a charge on public funds.
Deputy Costello also asks if we are lagging behind with regard to international policing in these areas. I do not claim we are perfect, but through the Criminal Assets Bureau the State is at the forefront of state responses to corruption and the investigation and confiscation of the proceeds of crime. No state in Europe has such an advanced mechanism as the bureau, with some being hesitant to implement such a measure on civil liberty grounds. Ireland's policing mechanisms cannot be said to lag behind those of other states.
I have answered Deputy McGrath's question regarding the operation of search warrants and explained the matter of the delay to Deputy Hoctor.
I take this opportunity to wish officials and others who will not be attending the joint meeting a very happy Christmas and a prosperous new year.