Vol. 202 No. 2
I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern. Before we commence, I remind Members that except for the proposer of an amendment who may reply to the discussion on the amendment, Senators may speak only once on Report Stage.
Amendment No. 1 is in the names of Senators Bacik, Hannigan, White, McCarthy, Ryan and Prendergast. I call on Senator Bacik to move the amendment.
I move amendment No. 1:
In page 11, between lines 10 and 11, to insert the following:
"(4) The Minister shall within three months after the commencement of this Act publish a five-year anti-money laundering and counter-terrorist financing strategy illustrating how the objects of the Act are to be pursued, such a strategy to be evaluated and revised at the end of the five year period."
I moved this amendment on Committee Stage. The amendment seeks that the Minister publish a five-year anti-money laundering and counter-terrorist financing strategy within three months of the commence of this Act. I previously explained that this is based on the strategy published in the UK on foot of its legislation. I believe it would be useful to have a statutory basis for such a strategy.
I second the amendment.
As I stated on Committee Stage, in many cases strategy documents are produced without a legislative base. I do not believe it is appropriate to place such a strict requirement in a particular statute. I believe a flexible approach is more appropriate.
The Garda Síochána policing plan sets out, as a priority, the protection of the security of the State and its citizens against domestic and international terrorism and goes into great detail in terms of how domestic and international security can be maintained. It is also the case that my departmental strategy statement, which covers a three year period, contains commitments in regard to maintaining a secure and peaceful society.
Senator Bacik will be aware that an anti-money laundering compliance unit has been established in my Department. This unit will have supervisory and monitoring responsibilities in regard to money laundering in respect of the sectors where there are no other supervisory bodies. I can assure Senators that it is my intention to ensure that the strategy relevant to anti-money laundering controls in the sectors for which the unit of my Department will have responsibility will be reflected in our next strategy statement which will be published in 2011 to cover up to 2013. I also point out that there is a requirement in section 56 of the Bill for every competent authority, namely, every supervisory body, covered by the legislation to include in any annual report published by it an account of the activities that it has carried out in performing its functions under the legislation.
I suggest the Senator's amendment is not necessary.
I accept the Minister is prioritising the issue and will not press the amendment. However, I reiterate my belief that it would be useful to have a statutory basis for this strategy.
Recommital is necessary in respect of amendments Nos. 2 and 3 as they do not arise out of committee proceedings.
Amendments Nos. 2 and 3 are related and may be discussed together.
Section 8 provides for an offence of money laundering outside the State in certain circumstances. Such circumstances include where the conduct takes place on board an Irish ship or an aircraft registered in the State. The opening words of section 8(1) provide that the offence is committed only if the conduct concerned is an offence under the law of the place in which it has occurred, that is, outside the State. The advice of the Attorney General is that it is not correct in terms of section 8(1)(a) or section 8(1)(b), which deal with conduct which takes place on board an Irish ship or aircraft registered in the State and the provision, therefore, requires an amendment. There is no change in intention or policy as a result of these amendments. I ask the House to agree to them.
Amendments Nos. 4 and 5 are cognate and may be discussed together.
On Committee Stage in the Dáil an amendment was made to the definition of "financial institutions" in section 24 to include the category of investment business firm within the meaning of the Investment Intermediaries Act 1995 so as to bring within the scope of the Bill certain insurance intermediaries who are not otherwise covered. However, this has had the unintended effect of bringing non-life insurance intermediaries within the scope of the Bill due to the fact that the Insurance Act 2000, as amended, had the effect of bringing non-life insurance intermediaries within the definition of "insurance business firm". Non-life insurance intermediaries deal with house insurance, motor insurance and other types of non-life insurance. They are not covered by the third European Union money laundering directive as the products they sell do not constitute a material money-laundering risk. Therefore, there is no requirement to cover them in the Bill. The amendment would, therefore, exclude this type of group.
Amendment No. 5 relates to subsection (g) of the definition of a “financial institution” in respect of An Post for the same reasons.
Amendments Nos. 6 and 8 are related and may be discussed together.
Amendments Nos. 6 and 8 will insert definitions of "member" of a designated accountancy body in the definition section of the Bill, and in section 24 for the Irish Taxation Institute. Amendment No. 8 amends the current definition of "relevant professional advisor" which is currently contained in the section. It was considered important that the definition for members of these groups be included as the current references to members could have the effect of including persons who are not the subject of a regulatory routine, such as students. The membership of such bodies is a criterion which is used in a number of important sections in the Bill.
On the definition of "member of a designated accountancy body", Senators will be aware the Bill already contains a definition of such bodies by reference to the Companies (Auditing and Accounting) Act 2003. It also contains a definition of a "member of a designated accountancy body" which is, therefore, the applicable reference. The definition of a "member of the Irish Taxation Institute" takes a similar approach in intent. The definition of "relevant professional advisor" has been amended as a consequence of these as it is no longer necessary to refer to the conditions stated in this definition as they will now be covered by the individual definitions.
The amendments also have the effect of ensuring that these groups of professions are treated in the same way as other groups, for instance solicitors who, if practising, are subject to a disciplinary regime. It is also important that such definitions are included in the context of the significance of these terms in various sections of the Bill. For example, section 14 deals with reliance on a relevant third party to carry out customer due diligence and also applies quite rigorous tests for professions in other member states.
Other relevant sections include section 46, which in circumstances stated provides for an exemption of the disclosure of certain information in the context of suspicious transaction reports. Sections 51, 52 and 53 provide exemptions from the offence of tipping off for such groups of professionals in stated circumstances. For these exemptions to be provided it is important that a disciplinary and ethical regime is in place for the relevant persons in such professions.
Again, I commend the amendments to the House.
I am not speaking against the amendments but we had some debate on this matter on Committee Stage. It is very much related to amendments I have tabled, namely, amendments Nos. 7 and 9. We are all in agreement about the aim of the Bill and want to ensure the correct people are covered by it. On Committee Stage I raised with the Minister the issue of whether the Bill captures the sufficient numbers. Amendments Nos. 6 and 8 are designed to capture a larger group. Do they capture the issue of external accountants? How do they relate to the definition of "designated person" in section 25?
Chartered Accountants Ireland has raised with the Minister and the Department the fact that accountancy bodies do not have regulatory functions or practising certificate regimes and therefore may not be in a position to monitor their members for anti-money laundering purposes. It is also concerned that there are people who hold themselves out as "accountants" but who are not members of any accountancy bodies. Given that the term "accountant" is not protected by Irish law, Chartered Accountants Ireland is concerned that such people may not, therefore, be caught under this provision although it seems they will be captured within the definition of "designated persons" under sections 24 and 25 of the Bill.
In such circumstances, the competent authority in respect of external accountants or people holding themselves out as accountants but who are not members of an accountancy body would have to be the Minister. I tried to capture some of my concerns and those of Chartered Accountants Ireland in this regard with amendments Nos. 7 and 9, which would include the term "insolvency practitioner". I have used the term to mean a person acting as liquidator, provisional liquidator, receiver or examiner to a person or as trustee in bankruptcy proceedings whether the person holds accountancy qualifications, is a member of a designated accountancy body or is a relevant independent legal professional.
My amendments would capture more accurately the group of persons who will not be governed by the regulatory regime of a designated accountancy body. I do not oppose amendments Nos. 6 and 8 but I am not sure that they are comprehensive enough. I ask the Minister to clarify that point. When we debate amendments Nos. 7 and 9 I will ask the Minster whether he will be willing to accept them. He indicated on Committee Stage that he would examine the issue of insolvency practitioners in particular.
In a nutshell, the provisions in the Bill allow us to designate further classes of practitioners if the need arises. We believe we have included the required number and type of practitioner in this area as much as we can in the Bill. The issue of the definition of an accountant is a matter for other legislation. On this Bill, if there are groups of people or individuals who are holding themselves out as auctioneers we can make the necessary designation in that respect.
On amendments Nos. 7 and 9 tabled by the Senator, we have examined the issue and, as much as possible, have endeavoured to include people who are legitimately involved in insolvency, such as solicitors' practices and accountancy practices, but there are people who do insolvency transactions to a certain extent, even on an amateur basis. There may be a difficulty in that respect in that the definition proposed by the Senator does not cater for them. This is something we can come back to at a later stage, if necessary.
As amendment No. 9 is related to amendment No. 7, they may be discussed together.
I move amendment No. 7:
In page 22, line 40, after "adviser," to insert "insolvency practitioner,".
I have explained the rationale for tabling these amendments. I also raised the issue on Committee Stage. I am concerned that the existing provisions of the Bill do not cover those persons who hold themselves out as "insolvency practitioners", that is, persons who act as liquidators, provisional liquidators, receivers, examiners, trustees in bankruptcy proceedings or administrators under the insurance and credit union Acts. Such persons will be captured if they are members of a designated accountancy body or the Irish Taxation Institute in accordance with the Minister's amendments. However, he has acknowledged that these persons may not hold accountancy qualifications and may not be members of a designated accountancy body, the Irish Taxation Institute or a legal professional body. In the interests of ensuring adequate consumer protection, it is important, therefore, to include a term that would capture a group which may not otherwise be captured. The Minister described them as "amateur practitioners", but a consumer dealing with someone who holds himself or herself out as an insolvency practitioner may not be aware of the professional or amateur status of the person concerned. Chartered Accountants Ireland has also suggested it would be useful to include the term"insolvency practitioner" in the Bill.
I assume the Minister will respond again that this matter can be revisited at a later stage and that further classes of practitioners may be designated but that is not satisfactory. We are dealing with the final Stages of a Bill that has been passed by the Dáil. Therefore, this issue should have been tidied up, clarified or resolved before now. My amendment would do this.
I second and support the amendment so ably proposed by Senator Bacik. The term "insolvency practitioner" would cover what Chartered Accountants Ireland has intimated it would like to see included.
The proposed amendment would have the effect of inserting the term "insolvency practitioner" in the definition of "professional service provider" and also in the list of designated persons in section 25. The primary purpose of the Bill is to transpose the requirements of the third EU directive which does not require the designation of insolvency practitioners, although this does not prevent us from going further in designating other groups. However, we should first be satisfied that such a designation is appropriate and required.
It is important to consider whether the obligations the Bill imposes which cover a wide range of issues are relevant and appropriate to the activities of particular groups. For instance, the question arises as to whether the obligations arising in the provisions of Chapter 3 dealing with customer due diligence which require identification and verification of customers and the record keeping obligations in Chapter 6 are applicable to a group such as insolvency practitioners. Generally, the various classes of designated persons specified in the Bill are involved in providing some service for customers. It is possible that professionals involved in dealing with insolvency matters could become aware of instances of illegality, including money laundering, which may be relevant to include in regard to obligations in respect of suspicious transaction reporting. However, insolvency and related issues are complex. It is important, therefore, that the inclusion of such groups is not decided on without detailed consideration and analysis, including of the relevance of certain activities and obligations. In this respect, it is important to bear in mind that the legislation contains provisions that enable the Minister to designate further groups. Section 25 which lists designated persons provides in subsection 1(j) that other persons can be included, for example, any other person of a prescribed class. Subsection (7) provides that the Minister may prescribe a class of persons for the purposes of that subsection, subject to conditions.
During the drafting of the legislation we examined whether we could extend the definition, but it was decided against it on balance because it was not clear to what extent and how appropriate it would be to apply all of the obligations imposed by the Bill to a certain group. The Senator mentioned my reference to amateur insolvency practitioners, a number of whom do not have qualifications. They do this work because they have been involved in a few cases. We decided it would be better to see how matters progressed. I can make regulations to designate further groups under the existing provisions.
I am grateful that the Minister has given a considered response to my proposal and that he is willing to come back to review the issue and examine the possibility of designating other groups in the future, but I am disappointed the matter cannot be resolved and that an amendment cannot be made to capture this group. It is important in the interests of the consumer to ensure as large a group as possible is covered, but I will not press the amendment.
Section 33 is an essential part of the customer due diligence provisions in the Bill. Customer due diligence is a key feature of the money laundering system, central parts of which are the requirements to identify customers and ongoing monitoring of such customers and transactions. The amendment relates to section 33(1)(d) which provides that the identification and verification measures set out in section 33(2) must be applied before a service is carried out for a customer if the designated person has reasonable grounds to doubt the veracity or adequacy of documents or information previously obtained relating to verification of the customer.
The reason for the amendment is to ensure there is no question as to whether the section applies to documents or information obtained before the commencement of the section. The amendment replaces section 33(1)(d) and states the relevant documents or information may be obtained under section 33, section 32 of the Criminal Justice Act 1994 or any other administrative arrangements that a person may have applied before section 32 of the 1994 Act operated in regard to the person. The purpose of the amendment in inserting a new section 33(1)(d)(ii) is to reflect the fact that a designated person may in the meantime have obtained other relevant documents or information, that is, not those which caused the doubt in the first instance, which adequately verify the identity of the customer.
The purpose of the amendment is to correct an error in the text of section 34 which should read, "the treaties".
As amendment No. 12 is related to amendment No. 19, they may be discussed together.
The amendments apply the same principles arising from amendments made on Committee Stage, which is important for reasons of clarity and consistency. I brought forward amendments on Committee Stage to include a definition of "occasional transaction" in section 24 and an amendment to section 33(1)(b) as a result. The proposed amendment to section 37(2)(b) also reflects these changes. The amendment to section 33(8)(b) is in line with the amendment made on Committee Stage to section 33(8)(a), as it inserts the term “transaction” into the provision to clarify that it applies to either a transaction or a service.
These amendments arise in section 37 which provides for enhanced customer due diligence to be carried out in regard to persons who are politically exposed persons. The provisions being amended are those dealing with the requirements that designated persons obtain approval from senior management before a business relationship is established with a politically exposed person and determining the source of wealth and funds involved in such business transactions. The amendments have the effect of setting out the provisions more clearly, thereby achieving greater clarity. For this reason, there has been a reordering of subsection (4) which now also specifically states the requirements apply if a person knows or has reasonable grounds to know that a person is a politically exposed person.
The amendment to subsection (6) in regard to a beneficial owner reflects the same approach as adopted in subsection (4). The amendments to subsection (7) specify clearly the circumstances in which a designated person is deemed to know that a person is a politically exposed person for the purposes of subsections (4) and (6), on which there are reasonable grounds for concluding that the designated person so knows.
The amendment to subsection (8)(a) arises essentially from the previous amendments and reflects the fact that the determination of the source of wealth and funds is an ongoing responsibility. It is, therefore, more appropriate to provide that the designated persons should discontinue the business relationship, if any, in the circumstances stated. It is also consistent with the other provisions in the Bill, for example, section 33(8).
I move amendment No. 22:
In page 42, lines 34 and 35, to delete "and the Revenue Commissioners".
On Committee Stage the Minister had sympathy for the point that the section involved a bureaucratic overload in that two separate reports were required. The amendment would remove the obligation to report also to the Revenue Commissioners. I will not press the amendment, but it should be enough to report to the Garda Síochána, given that there should be very strong liaison between these bodies. We all want the legislation to be as effective as possible, but there should be sufficient liaison between the Garda and Revenue such that one reporting obligation would suffice.
I second the amendment.
As I said previously, I do not regard it as bureaucratic overload that people are obliged to report to both bodies. It is important that, while there is a good connection and communication on an ongoing basis between the Garda Síochána and the Revenue Commissioners, the requirement is that a report be made to both, just in case. It is a double-lock, as it were, from the State's point of view to ensure we take care of the matter. If, for instance, we were to accept the amendment, it could possibly lead to a situation where at some future date an issue of wrongdoing would not be picked up properly. I would be reluctant to accept the amendment for that reason, although I do not say that is the Senator's intention.
No, clearly it is not our intention. We wish the Bill to be as effective as possible.
I move amendment No. 23:
In page 58, line 45, after "oath" to insert "or affirmation".
The amendment seeks to insert the words "or affirmation" after "oath" since the law allows affirmations to be made as well as oaths. Strictly speaking, it may not be necessary to do this, as the matter is covered by the reference to oaths in the interpretation legislation, but it would be an improvement in terms of clarity of the Bill. It is a matter of principle and would be a good idea to include the words "or affirmation" wherever the word "oath" appears inmodern legislation.
I second the amendment.
It is a matter of principle every time a Bill passes through the Dáil that a member of the Labour Party proposes such an amendment because some of the backroom people feel this is absolutely necessary.
It is not just the backroom people who feel that way.
I was joking. Perhaps someday the Government will amend the Interpretation Act 2005 in order that we can get rid of this amendment that is proposed to every Bill. The stock answer is that it is not required. That is the advice from the Office of the Attorney General on the interpretation of the Interpretation Act 2005 in respect of the definition of the word "oath".
I will not press the amendment to a vote, but it is an important principle, to which the Labour Party and I personally adhere. We should seek to ensure in a modern, pluralist republic that, where possible, we separate church and State in every aspect. To include the word "oath" without also including "or affirmation" is bad practice in a modern state. I will not press the amendment, but the Minister will see the amendment crop up time and again in legislation from the Labour Party.
I move amendment No. 24:
In page 78, line 44, after "purpose," to insert "as giving rise to civil or criminal liability or".
The amendment seeks to strengthen the whistleblower's section, section 112, as we wish to ensure there is no omission in the protection of whistleblowers. The section only covers protection against an action for breach of confidence and does not provide for immunity from liability for such disclosures. The amendment would clarify the protection provided for whistleblowers and improve the provision.
I second the amendment.
As I stated on Committee Stage, the issue of civil or criminal liability could not arise unless there was a breach of an enactment or rule of law. The section specifically states that in the circumstances set out, it would not constitute such a breach. The inclusion of an express reference to liability is not required. While I appreciate the intention of the amendment, I cannot accept it.
I thank Senators on all sides of the House for their work on the Bill. I do not say this because I am present in the House or in a political way, but I disagree with the suggestion that we get rid of the Seanad, as I very much welcome the exchanges on legislation in this House. From the point of view of the examination of legislation, it is important that we have two Houses. It is a great exercise that keeps Departments on their toes. It is a double-lock mechanism, as it were, in the examination of legislation. I tend to suggest to my officials that we start legislation in the Seanad and finish it in the Dáil because there tends to be a more detailed argument on certain Bills — not every Bill — in this House that we do not have in the other House.
I thank Senators for their work on the Bill. I also thank the office of the Cathaoirleach and my officials for their work on this extensive legislation. There is an onus on us to pass the Bill as quickly as possible because of an EU imperative. I also hope we will be able to comply with its requirements.
I compliment the Minister and his officials on introducing this important Bill to tackle money laundering and terrorist financing. Such legislation is long overdue and I compliment everyone involved with it.
I thank the Minister for his kind words. I welcome the passing of the Bill which the Labour Party supports and on which we engaged with the Minister. Apart from the Government, the Labour Party was the only group to table amendments. We did so in a spirit of constructive engagement. As the Minister indicated, the debate on Committee Stage of the Bill in the Seanad was very good. We have teased out very well some of the issues relating to it. Although I am disappointed the insolvency practitioner point was not ultimately accepted, I thank the Minister. I thank him also for his comments on the usefulness of the Seanad and the importance of an Upper House in terms of providing extra scrutiny. It is important. In my short time here I have certainly seen some very good debates on Bills, especially on Committee Stage. Really interesting and complex points have been teased out. I thank the Minister and his officials very much for their work on the legislation.
I, too, compliment the Minister and his officials on this very important legislation. The Minister's record in the Department on clamping down on organised crime and terrorism is exemplary and will stand to us as we continue to tighten the net on terrorism in this country. Money laundering, which is a part of terrorism, comprises a huge area. If we can make it more difficult for people to launder money, organised crime will become less attractive.
The Minister's comments on the Seanad are very helpful in the overall debate on whether there should be an Upper House. It is interesting that Senator Cummins did not pick up on that point considering his party's position thereon. As a younger legislator in the Houses, I believe it is very important that legislation be read in both Houses. We need reform of the Seanad and this could be raised at Cabinet level. This would be very helpful. We need to have legislation read in two Houses. It is cheap political points scoring to say one should just get rid of the Seanad. If we asked the public whether the entire Oireachtas should be got rid of, it would probably vote in favour of the proposal. Saying we should get rid of the Seanad is political points scoring and populist.
We still have not heard the proposals for Seanad reform that were promised last year.
We need reform and the Minister's comments are very helpful.
I thank the Minister and all the Senators for their co-operation. If this Bill had a time limit, we managed to consider Report Stage in a timely fashion.
