I am pleased to be back in this House, this time to debate the Government's legislative response to one aspect, although a very important one, of its policy in relation to standards in public life. The Prevention of Corruption (Amendment) Bill deals with far more than corruption in Irish public life, as I will explain shortly. However, it contains specific measures of particular relevance to the work of Members of both Houses of the Oireachtas in their role as public representatives.
The Bill sets out the Government's legislative proposals to combat bribery and corruption in both the public and private sectors. To this end, the Bill will update anti-corruption legislation, expand it to cover areas which are currently outside its scope and make the law more responsive to modern conditions. The Bill contains measures which will ensure that corrupt behaviour is dealt with swiftly, effectively and severely by the rule of law. The Government will not tolerate corrupt behaviour or practices, no matter from where they emanate. The message should be made clear that anyone found guilty of corrupt practices will face unlimited fines or up to ten years in prison, or both. These are severe penalties and I make no apology for that.
I do not need to remind Members of the need to have in place effective laws to tackle corruption. Charges of corruption levied against the few have the capacity, in the public mind, to taint everyone engaged in public life. Allegations and rumours of corrupt practices have a corrosive effect on public life with the result that public confidence in the entire system is undermined. Members have a right to be concerned at the possible erosion of confidence in politics and politicians and to demand that the law is stringent enough to deter corrupt practice in the first instance and to punish severely such conduct when it is uncovered. The Bill will ensure that our criminal law is responsive to the needs of society in fighting corruption involving public representatives or officials.
I will not comment on allegations made in the course of hearings of the tribunals whose task it is to investigate payments to politicians or corruption in the planning process. They will report in due course and nothing we say here should interfere with that process. However, we must be concerned at the reports that have emerged and we must be prepared to take action to ensure that confidence in the political system, and in us as politicians, is not lost. The Government has taken action in this regard. The Local Government Bill includes a comprehensive ethics framework for local authorities which will apply to elected members and employees alike. There is also the Standards in Public Office Bill and, of course, the Bill we are discussing today.
It might be of use to Senators if I give some background to the proposals in the Bill. The law relating to corruption is governed mainly by the Prevention of Corruption Acts, 1889 to 1916. There was some updating to these made by the Ethics in Public Office Act, 1995.
Under these Acts various activities are criminalised as corrupt practices. For example, the 1889 Act, as amended by the 1995 Act, makes it an offence for a person holding a public office, a special adviser or a director or occupier of a position of employment in a public body corruptly to solicit or receive any reward as an inducement for acting or refraining from acting in accordance with the individual's duty. It is also an offence for a person to offer to such an individual any reward for acting or refraining from acting in accordance with his or her duty. The current penalty for conviction on indictment for this offence is a fine of £50,000 or imprisonment for up to seven years, or both.
The Prevention of Corruption Act, 1906, defines a wide range of persons, referred to in the Act as agents, who could be described for present purposes as office holders or employees, whether in the public or private sector. It provides that any agent who corruptly accepts or obtains from any person, either for himself or herself or for any other person, any gift or consideration as an inducement for acting or refraining from acting in relation to an employer's affairs will be guilty of an offence. Corruptly giving or agreeing to give to an agent a gift or consideration for the like purpose is also an offence.
The meaning given to the word "agent" includes any person employed by or acting for another. It also refers to any person holding an office remunerated out of the central fund or out of moneys provided by the Oireachtas as well as other public office holders. The Ethics in Public Office Act, 1995, amended this to include office holders and persons occupying positions of employment in any public body. It also includes special advisers.
The amendment effected by the 1995 Act had the unfortunate effect of removing from the definition of agent in the 1906 Act some categories of person previously covered. Thus, while the new definition covered certain specific national office holders, such as Ministers as well as civil and public servants, it excluded a number of others, such as Members of the Dáil and Seanad and judges. Members of this House will agree that the categories of persons who should be covered by anti-corruption legislation should be as broad and comprehensive a possible.
The 1916 Act was aimed at a particular form of corruption, namely, the awarding of public contracts, and provided for a presumption of corruption where it was proved that money was given to a public official by a person seeking to obtain or retain a Government contract. The Bill before the House today will build on these earlier Acts and will considerably strengthen the law against bribery and corruption.
Corruption is not something which is of concern to us solely from the point of view of maintaining confidence in us as politicians, nor is it confined to those engaged in public life or working in the public administration of the State. Such is the international concern at the possible effects of corruption, both in terms of the erosion of confidence in the ability of the system to deliver services impartially as well as the likely distortion of trade or disruption of commerce, that there has been a number of international instruments aimed at combating corruption. The European Union, the Council of Europe and the OECD have drawn up conventions against corruption. As can be seen from the Long Title, the Bill will give effect to these conventions. That being the case, however, I will outline briefly for the House what these conventions contain.
The EU convention on the fight against corruption involving officials of the European communities or officials of member states of the European Union aims to complement national measures to combat fraud or 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. 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. It also deals with 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. Corruption of or by members of the European Commission, the European Parliament, the Court of Justice and the Court of Auditors are also covered by the convention. It requires member states to take the necessary measures to criminalise such activities.
The OECD convention deals with situations where a person commits an offence by promising to give or by giving a bribe. It seeks to ensure as far as possible that parties to the convention adopt equivalent measures to penalise bribery of foreign public officials. The primary objective of the convention is set out in Article 1 which provides that it should be a criminal offence for any person to bribe a foreign public official, that is, to offer, promise or give any undue pecuniary or other advantage to obtain or to retain business or other improper advantage in the conduct of international business. For the purposes of the convention a foreign public official is defined as meaning any person who holds a legislative, administrative or judicial office in a foreign country, a person who exercises a public function for a foreign country and any official or agent of a public international organisation.
The Criminal Law Convention on Corruption, a Council of Europe convention, also seeks to put in place a common response to the problem of corruption. It deals with corruption of or by domestic and foreign public officials and members of domestic and foreign Parliaments or other assemblies, officials of international organisations, members of international parliamentary assemblies and judges and officials of international courts. It also deals with corruption in the private sector. The Bill before the House will enable Ireland to ratify these conventions and it is our intention to do so at an early date after the Bill is enacted.
Ireland very much supports these and other international efforts against corruption. Members of the House might be interested to know that a conference on the theme of fighting corruption and safeguarding integrity was recently held in the Hague, at which I had the honour to be Ireland's representative. The conference represented a key element in the preparation of a proposed UN convention on corruption. An important aim of the conference was to determine a common approach to be taken to fighting corruption on a global scale and in ensuring effective measures to combat corruption at all levels. The report of the conference is expected to be available later in the year.
Ireland is also a member of GRECO, the group of nations against corruption, which meets under the auspices of the Council of Europe. It recently undertook an evaluation of Ireland, with particular emphasis on the legislative and institutional mechanisms in place to prevent corruption and the functioning of the various bodies which would contribute to the fight against corruption. While the report of the evaluation will not be available until the autumn, the indications are that there was general satisfaction with the systems and procedures in place to prevent corruption in the first place or to detect and punish for it if it does occur. I might add that in international terms we are considered among the least corrupt.
However, that should not make us complacent and I think it is fair to say that there is a general recognition that our anti-corruption legislation needs updating. The Bill will do this and will also ensure that there is in place a strong response to offences involving corruption. I say this because the provisions of the Bill deal with such matters as specifying a wide range of persons who will be subject to its provisions, defining clearly the actions which constitute corruption, providing for presumptions of corruption in certain circumstances as well as dealing with corruption committed abroad and providing for penalties upon conviction of unlimited fines or up to ten years in prison, or both.
I will now outline in more detail for the benefit of the House the provisions of the Bill. Section 1 is a standard provision. Section 2 may be considered to be the central provision of the Bill. It substitutes a new section for section 1 of the 1906 Act. As I mentioned earlier, this Act introduced the concept of agent for the purpose of criminalising corruption by or of a wide range of office holders and employees in the public as well as the private sector. I also mentioned that the Ethics in Public Office Act, 1995, had amended the definition of agent in such a way that a number of persons previously covered were outside its scope. Consequently, the Bill affords the opportunity to make the definition as comprehensive as possible as well as providing for suitable penalties for any breach. The best way to achieve this is to substitute an entirely new section for the old one.
Section 2 of the Bill, therefore, provides that an agent includes any person employed by or acting for another. With regard to public bodies, agent includes public office holders, persons occupying positions of employment in a public body, special advisers, members of local authorities and health boards and members of other bodies financed out of Exchequer funds. The section sets out further specific categories of persons also covered. These are Members of the Oireachtas, the Attorney General, the Comptroller and Auditor General, the Director of Public Prosecutions, judges, members of the European Parliament representing constituencies in the State and any other person employed in or acting on behalf of the public administration of the State.
Ireland supports international efforts against corruption and in particular will ratify the EU, OECD and Council of Europe conventions. Therefore, the Bill also makes provision for dealing with corruption by, or of, foreign office holders and officials. It is important that our laws should capture such activities. Accordingly, the definition of agent in section 2 will also extend to members of the Government and national or regional Parliaments of any other state, a Member of the European Parliament, the European Court of Auditors and European Commission, foreign public prosecutors and foreign judges as well as judges of any international court established by agreement to which Ireland is a party. Finally, it includes employees of international bodies and foreign administrations.
Regarding the offence of corruption, the section states that it will be an offence for an agent, or any other person, to corruptly accept or obtain, or agree to accept or attempt to obtain, whether for personal benefit or for someone else's benefit, any gift, consideration or advantage as an inducement or reward for acting or refraining from acting in accordance with his or her position. It will also be an offence for any person to corruptly give, agree to give or offer any gift or consideration to the agent or any other person as an inducement or reward for the agent acting or refraining from acting in accordance with his or her position. Senators will appreciate that the offence covers not only the office holder or employee, but any other person, such as a spouse, who might have influence over the former.
I have indicated that there can be no tolerance for corrupt practices within our political system. As far as the law against corruption is concerned, it should be equally clear that such activities will be subject to severe sanctions. That is why the Bill provides that the penalty to be imposed following conviction on indictment will be increased from the current penalty of a fine of up to £50,000 or imprisonment for up to seven years or both to an unlimited fine or up to ten years imprisonment or both. Where an offence under the Bill is dealt with summarily in the District Court, the judge may impose a fine of up to £2,362.69, or a term of imprisonment of up to 12 months, or both.
The level of fine provided for may seem unusual at first reading. The fine originally provided for in the Bill was £1,500. However, this figure was re-examined in light of advice from the Attorney General's office that the change in the value of money since the level was last raised indicated that an increase was possible. That office further advised that an increase in the monetary penalty for summary conviction, having regard to the impending introduction of the euro and the need to provide for a rounded figure in euros after next January, should be no more than 3,000, which converts to the sum provided for in the Bill.
Section 3 of the Bill provides for a presumption of corruption in certain circumstances, that is where a public representative or candidate for election is concerned. Where there are proceedings 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: that the person 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; that he or she has failed to disclose it in accordance with the appropriate provisions and that the donor had an interest in the person's performance of his or her functions. Where these facts are proven, it will be presumed that the donation 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.
Section 4 of the Bill complements section 3. It provides for a presumption that a person holding public office or a public official has acted corruptly in certain circumstances. As this House is well aware, public office holders and officials have power to make decisions affecting many people and they are too many to list separately. However, in the mind of the general public there are certain areas where it is considered that the potential for corruption is most likely to arise and it is these which are targeted in the present amendment. The particular areas covered by this section are those related to the planning process, to the granting of licences or other permits and in relation to the sale or purchase of property.
It is useful to emphasise here that the scope of the presumption as set out in this section is limited to circumstances where there are already proceedings against a person for corruption and where there is proof of certain matters leading to such a presumption. Furthermore, it links the presumption of corruption to certain areas of decision-making. Its provisions seek to ensure the maintenance of a sense of confidence in the planning process generally and in the award of licences and permits. The section 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 in relation to the exercise of certain functions and where there is proof that he or she received money or other benefit from a person who has an interest in the way those functions are exercised. In those circumstances it will be presumed that the 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 office holders and officials who will be covered by this amendment include local government members, employees of public bodies, TDs, Senators, the Attorney General, judges, Irish MEPs and any person employed by or acting on behalf of the public administration of the State. The full list of those covered is set out in section 2(5) (b) of the Bill.
Section 5 provides for the granting of search warrants in relation to the investigation of offences of corruption. It provides for the granting of search warrants in respect of any offence under the Prevention of Corruption Acts which carries a penalty of at least five years imprisonment. In effect, therefore, all offences under the Acts, except an offence under the provisions of this section which will be a summary offence, comes within the scope of this provision.
Under section 5 a member of the Garda can apply to a District Court judge for a search warrant. The judge may issue the warrant if satisfied that there are reasonable grounds for suspecting that evidence of an offence under the Acts is to be found in any place and will authorise the entry and search of the premises and any person found there. There is also provision for a Garda superintendent to issue a warrant in circumstances of urgency. In recognition of the fact that such warrants will only be issued in circumstances of urgency, they will be valid for only 24 hours. The section also empowers the Garda to arrest any person who obstructs or interferes with the execution of a warrant and to demand certain information from any person who is present in a place during the search. The maximum penalty for a summary offence under this section is a fine of up to £2,362.69 or imprisonment for up to 12 months, or both. As I mentioned earlier, the fine will, in due course, convert to 3,000.
Sections 6 and 7 relate to aspects of jurisdiction. Normally Irish criminal law is territorial in its jurisdiction, in other words, it applies only to acts done in Ireland. There are some exceptions to this, such as certain sexual offences and murder. It would be naive to think that corruption takes place only within national boundaries, requiring a purely domestic response. The increasing complexity of international business and the opening up of national economies increases the danger that some will seek to exploit this by trying to influence decisions in their favour through the offer of corrupt payments.
This has been recognised and is the reason the EU, the OECD and the Council of Europe have each thought it desirable to formulate conventions to criminalise such practices involving foreign office holders and officials. It follows that as the offence, or elements of it, can be committed across frontiers, there should be legislative sanctions enabling the taking of prosecutions where any aspect of the offence occurs within this jurisdiction. Section 6 meets this requirement by providing that a person may be tried in Ireland for the offence of corruption once any element of the offence took place within the State. As a corollary, section 7 criminalises corrupt acts by Irish office holders or officials which are committed abroad, for example, by accepting a bribe while outside Ireland.
I said earlier that section 2 was the central element of the Bill. However, I am sure Senators will agree that section 8 of the Bill represents a significant contribution to the Government's determination to combat all forms of corruption in public life. Section 8 creates a new offence of corruption in office.
Current anti-corruption legislation does not deal adequately with a situation where an office holder or official may act corruptly on his or her own initiative to secure some personal benefit or advantage or advantage for another person. In such circumstances there is no question of a corrupt payment or favour being sought from, or offered by, any person. Such a situation might arise where the individual's actions are designed to benefit one's own family. The new offence created by section 8 will criminalise any act or omission by an office holder or official done with the intention of corruptly obtaining a gift, consideration or other advantage either for himself or herself, or for any other person. As an indication of how seriously this type of corruption is viewed by the Government, the penalty provided will be on a par with that for other offences of corruption under the Bill, namely, an unlimited fine or up to ten years imprisonment or both.
I turn to the issue of corruption as carried out by or on behalf of bodies corporate. Corporate bodies, as well as individuals, may become involved in offences of corruption. Equally, there are instances when individuals within a body corporate can contribute to such offences, whether directly by consenting to or conniving with the commission of an offence, or simply by wilful neglect of their responsibilities. For this reason, section 9 provides that responsibility for an offence of corruption by a body corporate can be attributed, where appropriate, to certain of its officers and or members. In this way, individuals as well as the body corporate can be held liable for the offence.
The final section, section 10, states the short title of the Bill. It also provides that the Act or sections of it may be brought into operation by order or orders made by the Minister for Justice, Equality and Law Reform. Those are the provisions of the Bill. It is a short Bill, but it contains a range of measures which will copperfasten and considerably improve existing legislation on the prevention of corruption. It will also meet our international obligations. It is clear that the elimination of corrupt practices is an objective to which all parties in the House are committed and that this Bill represents the best option for achieving that objective.
I look forward to hearing the views of Senators on the Bill. On that note I commend the Bill to the House.
