Amendment No. 1 is in the name of Deputy Howlin. Is Deputy Howlin moving amendment No. 1?
Prevention of Corruption (Amendment) Bill, 2000: Report and Final Stages.
Before doing so may I ask a procedural question? It is patently absurd for us to try to deal with the entire Report Stage of a Bill in about 13 minutes. Is it possible for the House to agree some modicum of extension to at least allow lip service to be paid if we all endeavour—
That matter has already been decided.
It was decided because there was no response from the Government, but it makes ludicrous the business of making law. When we are dealing with an issue such as corruption in the backdrop of—
We cannot have a rehash of the item. It has already been decided. The Order is made. We must deal with it in accordance with the Order of the House.
I accept what the Chair is saying—
The Chair has no choice but to accept the decision of the House.
It was a disgraceful decision and in future my attitude would be to withdraw from proceedings that make a mockery of normal business. However, I will try to deal with as many amendments as possible in the few short minutes remaining.
I move amendment No. 1:
In page 3, between lines 24 and 25, to insert the following:
"1.–Regard shall be had in the interpretation of this Act to the instruments mentioned in the long title to this Act.".
This is purely a technical amendment. I want to have certainty in the written text of the Act to ensure that the courts would have regard to the two conventions mentioned in the Long Title, that is, the convention on combating bribery of foreign public officials in international business transactions and the criminal law convention in the interpretation of the provisions of the Bill. If the response from the Minister is that this will be done in any event, it is important that it would be explicitly stated in the Act proper and, rather than labour the point, I hope this modest amendment can be accepted so that we can get on to the more substantive amendments that lie ahead.
I cannot accept this amendment. I repeat what I said on a number of occasions on Committee Stage. This amendment, and the other amendments in the name of Deputy Howlin, represent an attempt to supplant the provisions of the Bill with provisions which the Deputy suggests would lead to the enactment of a consolidated anti-corruption Act. I have made the point on a number of occasions that consolidation is not as simple as that and the Deputy's amendments, if accepted, would result in less effective anti-corruption laws than we have at present. I reiterate that the corruption Acts will be the subject of early restatement under the Statute Law Restatement Bill when passed.
The enactment of the Bill before the House will enable Ireland to ratify a number of important international conventions. Broadly speaking, these conventions require us to provide that certain types of activities will be offences under our laws, that they will apply to domestic as well as foreign office holders and officials, that Irish nationals will 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 will enable our ratification of all three conventions.
Offences of active and passive corruption are set out in section 2(1) and (2). The categories of officials who may commit these offences are specified in section 2(5). Corruption occurring partially in the State, or wholly outside the State involving Irish officials, and corporate liability are contained in sections 6, 7 and 9, respectively. It is important that I point out again that we are not incorporating the conventions into Irish law and, therefore, it is not necessary to provide that the courts shall have regard to them in interpreting provisions of the Bill.
This Bill, taken with the earlier Prevention of Corruption Acts, contains definitions of important words and phrases used in the Acts or in the Bill. These definitions are supplemented where necessary or appropriate by the Interpretation Acts. For these reasons I cannot accept the amendment.
I am dissatisfied with the Minister's response. I would like to have more time to tease out what we are doing regarding international conventions as it seems from recent experience that we sign up to them, but then in terms of domestic law, treat them with as minimalist an approach as possible. We have signed up to the two conventions listed in the long title. These are important conventions in terms of combating bribery and corruption. Although we are not transposing these conventions into Irish law, we have signed up to them and it is important that the courts should be obliged to have regard to them in interpreting the provisions of this enactment. That is the purpose of my amendment.
I will deal with the issue of consolidation in the next amendment. However, this amendment is not part of my argument regarding consolidation, but of my argument that these are important conventions which have been entered into by agreement of this House and successive Governments. In one case that was as far back as 1997. It is important that we do not just pay lip-service to international agreements, but that we show some regard to them. My amendment would not have the effect of transposing them into Irish law, but would provide that in the interpretation of the measures we are putting into Irish law, the courts would have regard to these conventions into which we freely entered.
The Department's attitude may be that we can sign up to international conventions without domestic consequences. If that is the case, and it may be from our experience of the transposition of the European Convention of Human Rights, it would be a sad approach.
Amendment put and declared lost.
I move amendment No. 2:
In page 3, to delete lines 25 to 32 and substitute the following:
"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
(f2>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,
(f2>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,
(f2>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 amendment sets the stage by proposing a number of new definitions in order that we would have an integrated prevention of corruption Bill rather than a more minimalist addition to the corpus of anti-corruption legislation which dates back to the 19th century.
The original Act was the 1889 Act which applied only to bodies outside central government. This is an amending Bill which leaves on the Statute Book four other Acts dating back to 1889. The 1889 Act will remain on the Statute Book as will the 1906 Act which introduced a comprehensive measure dealing with corrupt transactions with an agent concerning the affairs or business of his principal. In 1916 a presumption of corruption payment was introduced to cover situations where it was proven that a payment was made by a person holding, or seeking to hold, a Government contract. The opportunity was taken in the Ethics in Public Office Act, 1995, to update the language in all previous Acts.
We now have legislation dating from 1889, 1906, 1916 and 1995, and a cross-referencing of these Acts. On Second Stage we discovered that there is some confusion as to how to read interpretations as we were amending amendments to previous legislation. It would not have been difficult for the Minister to introduce a comprehen sive Bill. I would like to argue this case longer but I am conscious of time.
The principle of having a consolidation Bill is important if we are serious about dealing with corruption. There should be no ambiguity, but there should be clarity. In response to a parliamentary question yesterday, the Taoiseach outlined to me that the use of plain language in law – a principle enunciated by the Law Reform Commission – is to be accepted by Government. Part of plain language in law is simplicity of reading enactments. Parliamentarians find it difficult to read legislation when they are cross-referencing legislation which goes back more than a century. It should be possible to introduce a consolidating measure.
On Committee Stage the Minister promised that consolidation will be revisited. As he will not be impressed by the force of my arguments, perhaps he will give the House a specific time when this area of legislation, which is not particularly complicated, will be consolidated into a single legislative measure.
Having listened to the purpose and intention of this amendment, it replicates in large measure provisions already contained in the Bill. Amendment No. 2 sets out the meaning of certain words and phrases, some of which are standard in legislation. However, I wish to concentrate on aspects of the meaning given to the word "agent" which must be read together with the meaning given to the phrase "public official" in the amendment. These largely mirror the meaning given to the word "agent" in the Bill, including domestic and foreign officials, members of domestic and foreign Governments and Parliaments, domestic and foreign judges and members of certain EU bodies.
It is interesting to note that the amendment continues to use the word "agent" despite the Deputy's previous comments about the use of outdated language in the Bill. There are, however, some differences between the amendment and section 2 of the Bill. Most notable of these is the inclusion of the President in the amendment. The question of including the President as an office holder to whom the provisions of the Bill, or of other amendments, will apply impinges on the constitutional position of the President.
Article 13.8.1º of the Constitution provides as follows:
The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.
The Attorney General has advised that it is clear from this Article that the only liability which the President could have in law is for an act done by the person of the President declaring himself or herself to be doing it in a private capacity where the act is in no way connected with the exercise or performance of the powers and functions of the office.
Whatever liability might be placed on the person of the President, therefore, cannot be connected with the President as a public official. Accordingly it would not be possible to include the President as a public official to be covered by the Bill. As a result of this, and the fact that section 2 adequately deals with the matters covered by the amendment, I cannot accept the amendment.
I will not argue as I do not have time to do so. However, no office holder should be immune from the provisions of an anti-corruption measure. I will have to argue this matter on another day.
The Minister has not accepted the consolidation argument which is the real intent of what I am seeking to achieve. However, I will withdraw the amendment to allow another amendment to be moved before we conclude.
Amendment, by leave, withdrawn.
On a point of order, on behalf of Fine Gael I wish to protest at what is a corruption of the parliamentary system by the manner in which this Bill is being dealt with.
That is not a point of order.
This is outrageous. So this is the Government which will tackle the democratic deficit.
Acting Chairman
As it is now 12 noon, I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put.
Tá
|
Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin. |
Brennan, Séamus.Briscoe, Ben.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cullen, Martin. Tá–continued |
Dennehy, John.Doherty, Seán.Ellis, John.Fleming, Seán.Foley, Denis.Gildea, Thomas.Harney, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael P.Kitt, Tom.Lawlor, Liam.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John J.Martin, Micheál. |
Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael. |
Níl
|
Bell, Michael.Belton, Louis J.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Burke, Ulick.Carey, Donal.Clune, Deirdre.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.Deasy, Austin.Deenihan, Jimmy.Durkan, Bernard.Fitzgerald, Frances.Gilmore, Éamon.Gormley, John.Gregory, Tony.Hayes, Brian.Higgins, Jim.Hogan, Philip. |
Howlin, Brendan.McDowell, Derek.McGinley, Dinny.McGrath, Paul.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Neville, Dan.Noonan, Michael.O'Keeffe, Jim.O'Sullivan, Jan.Perry, John.Quinn, Ruairí.Reynolds, Gerard.Ring, Michael.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary. |
Tellers: Tá, Deputies S. Brennan and Briscoe; Níl, Deputies Bradford and Stagg.
Question declared carried.
The Bill will be sent to the Seanad.