Seanad Éireann - Volume 167 - 28 June, 2001
Prevention of Corruption (Amendment) Bill, 2000: Second and Subsequent Stages.
Question proposed: “That the Bill be now read a Second Time.”
Miss M. Wallace Miss M. Wallace
Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): 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.
Mr. Manning Mr. Manning
Mr. Manning: I welcome the Minister to the House. I apologise for the quality of my vocal cords. Contrary to what Senator Cregan implied  earlier, it is not due to a late night or any sing-song in which I was involved. It is simply laryngitis. I apologise for the corncrake quality which the House will hear today.
This Bill is welcome but there is a little bit of mystery surrounding it, even at this stage, that is, the length of time it has taken to get to the point, next week, of sending it to the President to be signed into law. The Bill was published on 4 January 2000, 18 months ago. Its arrival was surrounded with a great fanfare of publicity. However, Second Stage was not taken in the Dáil for a further six months and it only passed in the Dáil yesterday. Like many Bills it is coming before the House at the end of the session. It is clear the Government is not willing to take amendments so that it will fit in with its timetable. What we have here is a fait accompli, the Bill in its complete and final form.
The Bill was described in the other House as “a slight piece of legislation”. That description came from one of the Government's backbenchers, Deputy Roche, who indicated that while the Bill was welcome, it certainly did not go far enough, that it should have been a stronger and more comprehensive Bill and one that had a greater sense of urgency. That said, the Bill is welcome and as far as it goes, it is worthwhile. In the first case, it is worthwhile because it updates the 1906 Act. That Act of the House of Commons is outdated. Human nature being what it is, maybe the underlying motives behind corruption remain the same. Clearly that legislation was out of date. It is good it is being reformed. It should have been updated many years ago.
In her contribution, the Minister of State said it is no great surprise that this new legislation is probably one of the many direct consequences of the tribunal culture in which we now live and within which much of our political life operates. Like the Minister, I have no intention of visiting any of the current tribunals. It is not proper to take out of tribunals elements that are ongoing, elements where not everybody has been heard yet, and rush to judgment on these matters. One might say the rest of the country is doing that and that there is a whole new army of pundits who will give not just instant reaction but instant judgment on the daily fallout from the tribunals. Some of the comments are, undoubtedly, valid but there is also a need for caution. If all the answers were available at this stage, there would be no need for the tribunals to continue. Like others in this House, I prefer to wait until the sole member of each tribunal presents a report to these Houses, which set up the tribunals in the first place.
The tribunals have created a climate in which there is a public perception of widespread corruption in public life. From listening to some commentators in the media and some ordinary people, there is an impression about that all politics is corrupt and, by extension, all politicians are painted as being corrupt. When one pursues the  argument by asking people about their own TDs or Senators, their general reaction is that the public representative in their area is an honest person who works very hard for the area, is involved in community activity, makes sure that the voice of that area is heard in Dublin and has helped to speed up payment of grants etc. When asked if their public representatives are honest, the answer is invariably “Yes”. There is a rather strange and ironic contradiction whereby – this could be said of almost every Member of each House – in the eyes of people who know them and in their own communities, public representatives are regarded as honest people. Yet the taint of all politics and all politicians being corrupt not only persists but is becoming deeply embedded in public thinking. At an individual level, I believe most of us are seen as straight and honest but at the collective level the picture is very different.
Over the years, especially since the tribunals began, there has been a tendency, when charges were made, to rush in with legislation to try to deal with the latest scandal or weakness. In reality, having an accountable and corruption-free political system has been part of our political culture from the very foundation of the State. One of the first actions of the first Government in the 1920s was to set up a Civil Service Commission and a Local Authorities Commission. The idea behind that was to have a corruption-free and impartial public service, serving no party but serving the Government of the day honestly and loyally. Among our early civil servants, one recalls men of the calibre of Joseph Brennan and J. J. McElligott, who established an enduring tradition which has given us probably the greatest public servant of recent times, T. K. Whitaker. People who talk about corruption in public life ignore the fact that the Civil Service Commission, established by politicians, has acted to ensure that we have a corruption-free Civil Service. It is important in the current climate to recognise that, even if the Civil Service is being brought under the aegis of this legislation.
Reviewing the development of Irish life since the foundation of the State, there have been very few examples of corruption. Tribunals were set up in the 1940s and 1950s to examine corruption in public life and the conclusions were rather minimal. In the Ward tribunal, Dr. Ward was found guilty of selling bad bacon and not keeping his tax affairs up to date – no more than that – yet it was the end of his political career. In the Locke's Distillery tribunal, the righteous charges which were made were not sustained against the Government of the day.
Over the years our politics have, I believe, been honest. I recall a conversation many years ago with the late Patrick McGilligan, one of the great founders of the State, about his experience in setting up the ESB. During a visit to New York, he was asked by one of the big companies how much it would cost to buy the Irish Government of the day, meaning what sort of bribe would be needed. He was shocked by that attitude, as would have  been his successors in the subsequent Fianna Fáil Government. At a time when bribery and corruption were endemic in American, French and German politics and when Britain had its own scandals in the sale of peerages and so forth, the founders of the State were concentrating on the provision of an honest and corruption-free public service. By and large, that has remained the case over the intervening years.
Turning to the Bill, it deals with a fairly small range of matters, but they are significant and important – I will not try to score party political points. In the current overall context of reform, there is a tendency to rush in with new legislation. We are possibly on the way to creating one of the most regulated political systems in the world. The Minister indicated some of the legislation passed in recent years to ensure we operate within a climate which is properly regulated. That, I suppose, is good but we have reached a stage where we need to take stock. Those of us who have looked at the situation in other countries will have come across some scare stories. For example, in New South Wales there are more enforcers and regulators than Members of Parliament, the budget for the regulation agency is as high as that of the Parliament itself and many MPs have been accused and examined, often on spurious, slight or trumped-up charges. Obviously, there has to be a sense of balance, so that Parliament and politics can breathe and operate without undue or unfair restriction.
We are approaching a stage where it may well be necessary to have one single Act rather than a whole series of Acts dealing with the behaviour of people in public life, in which I also include the Administration and the Judiciary. That omnibus Act should bring everything together, simplify matters and ensure certainty. Perhaps the next Government, if not this one, will produce such legislation dealing with all aspects of standards, behaviour and conduct in public life. Above all, we need simplicity and certainty in our laws, as I said recently during Second Stage of the Company Law Enforcement Bill. There is a common theme running through both these Bills with regard to the need for accountability and enforcement and, most of all, the need for the law to be clear, simple and certain, with no grey areas of doubt. That Bill also includes provisions to help in the fight against European fraud. That is very welcome, having regard to some well documented and rather frightening cases of European fraud involving an extraordinary degree of cynicism and huge sums of money. I am glad we are ratifying certain treaties and making it possible to deal with aspects of that situation.
This is a small but welcome Bill, another legislative brick in place in the attempt to restore confidence in public life, which in many ways has been unfairly lost. In one sense I am sorry this is just one reform – I have already made my point in that regard. My final appeal to the Minister is that at some time in the near future we bring together the various strands of regulation so there  is one omnibus series of rules. That said, I welcome the Bill.
Mr. J. Cregan Mr. J. Cregan
Mr. J. Cregan: I welcome the Minister and this very important Bill. I wholeheartedly endorse all that has been said by Senator Manning. The Bill was published in January 2000 and was finally passed by the Dáil on 27 June 2001. It is important that we have it in this House at this time because of the different alleged corruptions we have seen in our profession and in other professions. I am sure the public will welcome the fact we have modern legislation in place to deal with the problems emerging in a modern society.
The current law on corruption is not adequate, which is one of the reasons this Bill is being introduced. Our law on corruption is currently contained in a number of Acts as amended by the Ethics in Public Office Act, 1995. The Public Bodies Corrupt Practices Act, 1889, criminalises corruption by certain national office holders such as Ministers, as well as public and civil servants. The Prevention of Corruption Act, 1906, is wider in its application, though there is some overlap with the 1889 Act. It applies not only to the same categories as the 1889 Act, but also to corruption by agents, a term used in the Act to refer to any person employed by or acting for another, including those employed in public bodies. This very wide definition catches not only national office holders 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, provides for the presumption of corruption to arise where benefits are received by persons charged with corruption in relation to public contracts.
The changes made by the Ethics in Public Office Act had the effect of narrowing the range of persons previously covered by the 1906 Act and covered only specific national office holders, such as Ministers, as well as civil and public servants, while excluding others such as Members of the Dáil and Seanad, as distinct from Ministers, and judges.
This legislation is much wider and covers many more people in public office than previous legislation. The Bill sets out a wide range of persons to be covered by the provisions, including employees, public servants, Members of the Oireachtas, the Attorney General, the Comptroller and Auditor General, the DPP, judges, members of foreign parliaments, foreign office holders, members and officials of EU institutions and members of local authorities. It makes it an offence to seek or receive any benefit, whether for oneself or another person, in return for action or refraining from acting in accordance with one's position, or to give or offer any benefit for a like purpose.
It also provides for a presumption of corruption from the failure to disclose a political donation, as required under the Electoral Act, 1997, and the Local Elections (Disclosure of Donations and Expenditure) Act, 1999, where  the donor stood to benefit from a decision of the person. It provides for a presumption of corruption in relation to the exercise of certain functions, for example, decisions on the granting of licences, sale and purchase of land and functions under the planning code, by an office holder, an official, a politician or any other individual where the office holder receives money, etc., from a person who has an interest in the exercise of those functions. It also contains a provision for the issue of search warrants by the District Court. It provides that a person may be tried in Ireland for the offence of corruption once any element of the offence takes place within the State, and criminalises corrupt acts by Irish office holders or offices committed abroad.
It creates a new offence of corruption in office, for example, where an individual's actions are designed to benefit one's own family, as mentioned by the Minister. It also provides that responsibility for an offence of corruption by a body corporate can be attributed where appropriate to certain of its officers or members, a very relevant and important provision. The most important provision is that which provides for a penalty of an unlimited fine or up to ten years imprisonment, or both, upon conviction, which is welcome.
Mention has been made of the benefits internationally of this Bill being passed. It will enable us ratify a number of international conventions, including the EU convention on the fight against corruption involving officials of the European Communities or officials of member states of the EU; the OECD convention on combating bribery of foreign public officials in international business transactions; the Council of Europe's criminal law convention on corruption, which relates to corruption of or by domestic and foreign public officials and members of domestic or foreign parliaments and other assemblies as well as corruption in the private sector.
I agree with the Minister about the need to have this legislation in place to tackle corruption. Charges of corruption levied against a few have the capacity in the public mind to taint everybody engaged in public life. We have charges levelled at members of our own profession, in particular over the past number of years, but it is important to note they are a mere handful out of the hundreds who have served the country as politicians and public representatives over a number of years. However, there is a perception in the public mind, as Senator Manning said, that we are all corrupt and dishonest; we are all tarred with the same brush. Nothing could be further from the truth, and I endorse what Senator Manning said in this regard.
Since coming to the House a few years ago I have been hugely impressed by the honesty, integrity and hard working manner in which people go about their business in this and the other House. That can be said about public representatives throughout the country who work  actively at local level, who are involved in community activities and who have striven on a voluntary basis up to now to work in the best interests of their communities.
I also agree there can be no tolerance for corrupt practices within our political system. The law against corruption should make it 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 a current fine of up to £50,000 or seven years' imprisonment, or both, to an unlimited fine or up to ten years' imprisonment, or both. Where an offence under the Bill is dealt with in the District Court, the judge may impose a fine of £2,362 or a term of imprisonment of up to 12 months, or both. These are very welcome provisions.
The Minister also mentioned that in international terms we are considered among the least corrupt, something we do not tell ourselves or the public often enough. It is a positive message which should come from this debate. There has been a small number of scandals here, but there have been major scandals in other countries in Europe and worldwide. We can be proud that here only a handful are sinning and that they will be dealt with by the law, and in particular by this Bill.
As was said by Senator Manning, it is quite a short Bill, but it is very necessary. It contains a range of measures which copperfasten and considerably improve existing legislation on the prevention of corruption. It will also help us meet our international obligations, which is welcome. It is clear that the elimination of corrupt practices is an objective to which all parties in the House are committed and the Bill represents the best option for achieving that objective. It covers more than public office holders and in some cases can involve individuals or members of corporate bodies where, unfortunately, corruption also takes place. In defence of my own profession I often say to people that we have had allegations of corruption against a small handful of members, but we have seen the same if not a higher level of corruption across an entire range of professions, in particular over the past ten years, which is unfortunate. However, it is a fact of life and it is only in recent years we have seen these allegations coming to light. One scandal tends to lead to another. Currently the tribunals, which are going about their business in an independent way, are dealing with many scandals.
I welcome the legislation. It is long overdue and the public will thank us for putting it on the Statute Book.
Mr. O'Toole Mr. O'Toole
Mr. O'Toole: I also welcome this legislation. Senators on all sides of the House have commented on it broadly. Like Senator Manning, I would have welcomed much more comprehensive legislation to deal with this issue.
What we are doing today is responding to the possibility of there being low standards in high  places. We should remember that bribery and corruption is in the main a particular feature of emerging economies. It is something that occurs in countries shortly after they have achieved freedom and independence, in particular economic independence. There is the beginnings of a semblance of wealth and people feel they can begin sticking their hands in the till.
Bribery and corruption take place only when society fails to be a watchdog. It takes place at a time in the development of a nation when society is self-centred and self-focused on achieving more independent and individual wealth without looking at the common good. It is, therefore, very much the business of public representatives to ensure that regulations are put in place to protect society from itself in this matter because in a society where people have to prove themselves and do their best in the circumstances in which they find themselves, there is very often a latent encouragement of bribery if that is what it takes to get the business done. That is one of the things we have seen in the tribunals in recent years.
It should also be said that in a very real way bribery and corruption is an extraordinary depressant on society. We see it at present, particularly among people in public life. We hear it in discussions among Members of this House. It depresses everybody. Word of it gets out. In the past two years people have often asked me – Senator Manning and I have often discussed this – what would happen if it were proven that a certain person or people at a certain level were involved in corruption. Recently there have been major rows and scandals in many sectors of society, in the Judiciary, in political representation, in business and planning. The problem is that it tends to taint everybody within it and near it.
Bribery and corruption fuel cynicism in society. It feeds into the barrow of those who always want to see the downside. It reduces confidence in public life. We hear more about that than most people. It creates inefficiencies if people can buy rather than win their way by persuading or putting forward the best programme for action because, in effect, it creates that sense of inefficiency. It rewards incompetence. It puts people in a position of not having to deliver. It puts them in the position of being incompetent but able to bribe their way to achieving their financial objectives and rewards, and it discourages investment.
Senator Cregan correctly said that there is an international league table of corrupt, incorrupt and marginally corrupt countries and I regret to say that according to the most recent figures we have jumped up that league in the past two years for reasons of which we are well aware. It was in The Economist and not in The Irish Catholic or any other publication that deals with issues of public or private morality that I read that. The view is that nations that are subject to bribery and corruption are ones in which large companies,  multinational companies, significant companies of stature, will not wish to invest.
It also encourages criminality because the fact that people can buy rather than win their way through fair competition makes it attractive for people to break the law, to ensure that people in decision-making areas can be bought or approached at some low point in their lives and encouraged to do the wrong thing. It brings a nation to a point of moral bankruptcy and we are seeing that at present. It is what worries senior people in these Houses. This is not about somebody taking £100,000 or £200,000, or even £1 million. It is about the impact, the deadening, dampening effect it has on the whole nation. It devastates the reputation of a nation.
As it fuels cynicism, reduces confidence in public life, creates inefficiencies, rewards incompetence, discourages investment and encourages criminality, bribery and corruption bring a nation to the point of moral bankruptcy and devastate the nation's international reputation. Those are the reasons this legislation is before us today. It is more than we can allow to have a nation whose State is subject to bribery and corruption. We have seen the importance of public confidence in the public sector.
Senator Manning referred to the Shannon scheme which is a reflection of where we were at the birth of this State, when people with entrepreneurial gifts and talents and people in public service and political life got together, took risks, made a plan, worked out a strategy and employed the correct tactics to ensure we moved forward. We had great national movements at that time, the Shannon scheme being perhaps the one that represents all that was good in Irish life. In the 1930s, 1940s and late 1950s, when a civil servant of the stature of Dr. Ken Whitaker could sit down with a politician of the stature of Seán Lemass, deal with public life and put forward various plans for economic expansion, the best in Irish society was demonstrated. It was only when we started to create wealth, when we reached the stage that there was disposable wealth in the nation over the past two decades, that people suddenly felt they could grab it and we moved into a new period in the development of our State, that bribery and corruption became rife.
It was only within the past 15 years that a Taoiseach, in a throw-away remark in the United States, stated that income taxation was still a bit of a novelty in Ireland. It was a joke but, given what we are now seeing at the tribunals, perhaps it was not that much of a joke. Many people felt they were above the taxation system. I am not referring to somebody on the dole repairing a couple of punctures at the end of a lane in a provincial town to make a few shillings to buy a few pints on a Saturday night. I am talking about people who had a structured approach to bribery and corruption, to not paying their tax, to bribing senior people to ensure that tax regimes suited their needs.
 We have seen what happened in the planning area. I imagine we will never know the whole comprehensive nature of the bribery and corruption that drove many planning decisions in this State. That became endemic in the system in many places and there were people on both sides of the line who considered that what they were doing was the norm. On the building entrepreneurial side there were those who felt that the only way to get something done was to shove a few shillings here or there. On the other side of the line there were people who felt it was all right to do that because everybody else was doing it. That is why, in introducing legislation to prevent corruption, we must not be seen to be “holier than thou”. None of us is so clean that we have not done something wrong in our lives in one way or other. That is not what this is all about. This is not about claiming the high moral ground.
What is good about this legislation is that it has the support of all parties, and nobody, whether a member of a party or an Independent, is claiming to be more entitled to speak than others. We have a responsibility to ensure that the reputation of this State is rooted in a fair and open system of government in which people can have trust and confidence.
There is also a related issue emerging at this time. We have had a discussion about moving public sector industry to privatisation. People would hold forth in the pub on a Saturday night on the inefficiencies of the State sector, whether as regards Aer Lingus and the cost of its tickets before competition or the problems with the railways or the buses. Maybe these complaints were true but we should put them aside for a moment. There were other matters about which we did not think at the time. We did not think about whether we could be certain that every State regulation was upheld by the State sector. We did not remember, for instance, that all health and safety requirements were met in full. We did not have to worry about money going astray in those areas as everything was done properly.
Let us look at the latest issue which has arisen in the UK with the privatisation of the transport area and the privatisation of Railtrack. We have seen a series of accidents in the UK and when they have been investigated, it has been found that, in the interests of profit, people failed to meet health and safety requirements and put lives at risk and caused people to lose their lives. That is one of the reasons we have to be careful.
In regard to what is happening at the tribunals, these people were trying to get their hands on what were the jewels in the State crown, public industry, which they could get for a song or for a couple of hundred thousand pounds through offshore accounts. They tried to get a hold of what was, effectively, a licence to print money. Perhaps it is unfair to say this in a discussion on corruption but when I spoke this morning about the broadband facility, I was thinking about the west. If  broadband is to be made available to the west, the only way it can be delivered is through the copper wire system of Eircom. The only alternative to that is for people to put fibre optic cable throughout the country. They will put fibre optic cable into central Dublin, Limerick, Galway and the other big centres, but they will not bring it to Dunquin, Rossaveal or Killybegs. We are about to see a down side.
The fixed line business of Eircom is about to be bought by one company. It will have a complete monopoly. We will be back here in five years time when people will ask why they cannot have broadband in their part of the country or their constituency. Not much can be done about it here unless the State decides to buy it back. That is one of the reasons we have to be careful about how we move forward.
In talking about the need to control corruption and bribery, I take the opportunity to look at the work that has been done recently by the Revenue Commissioners, the Department of Finance – I would be its greatest critic in many other ways – and by public companies. We, in this House, have seen what we are prepared to do. Public representatives in both Houses are required to make a declaration of interest, to declare from where their funding comes and how they manage to operate. This legislation ensures that issues of bribery and corruption are dealt with in others areas of the life of the State.
We are touching the tip of an iceberg with this legislation. A lot more requires to be done but this is a step in the right direction. This is the way we want to go and it is good that it has the support of all sides. I am sure some could identify changes which could be made or things that could have been done differently. The message should go out, if anyone wants to listen, that we are cleaning up operations and are trying to create an environment in which bribery and corruption will find no place and will be properly punished and treated with absolute opposition by the people.
Miss M. Wallace Miss M. Wallace
Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): I thank Members for their contribution to the debate on this important measure to combat bribery and corruption. The Bill represents one important measure in the Government's strategy to put in place a code for the behaviour of those engaged in public life. Its focus is on tackling bribery and corruption. Other measures include the Local Government Bill and the Standard in Public Office Bill and they will be further supplemented by measures to provide greater transparency in public life. As Senator John Cregan said, we should not lose sight of the fact that by international standards, Ireland is not perceived as having a problem in this area. However, that is not to say we have no problem at all. The challenge for us is to provide the mechanisms to identify the practices that could amount to corruption in the first place and to detect them when they  occur. We must be constantly vigilant in this regard. If there are gaps in our laws, we must fill them. The Bill will ensure there are no such gaps.
The Bill brings anti-corruption legislation up to date so that it meets current challenges. I acknowledge our present law in this area stretches back a long way and, therefore, the changes contained in the Bill will have the desired effect of dealing appropriately with those who fall below the standards demanded of us.
I mentioned earlier that as well as improving on present anti-corruption laws, the Bill will allow Ireland to fulfil its international obligations by enabling ratification of three important conventions against corruption under the auspices of the EU, the OECD and the Council of Europe. I also mentioned earlier that the Bill represents one element of the Government's determination to ensure that the highest standards in public office are maintained. Other proposals in this regard include those which will require public representatives to have special accounts for political donations, proposals to limit the size of donations, protection of whistleblowers and regulation of lobbyists. Taken together all these measures will provide us with a comprehensive code for proper behaviour of public representatives and officials.
Senator Manning was concerned about the delay in getting the Bill to this stage. Part of the delay was due to the fact that the Government undertook a major reassessment of our code of ethics for those engaged in public life. Arising from that reassessment, the Government proposed two new sections to the Bill – which are now sections 3 and 4 – and they provide for presumptions of corruption in certain circumstances. The Bill is a better one for that and I am pleased it is a comprehensive response to the issue of corruption.
I welcome Senator Manning's positive comments about what we are trying to achieve in the Bill. Perhaps it is, in some way, a testament to the general lack of corruption in public life and public service that we have not felt the need to update legislation which dates back to the 19th century. Nevertheless, we do not live in wonderland and it is necessary to ensure that the law will be responsive to modern conditions. Part of the reason for the Bill is to meet international commitments as much as to update it for our own domestic purposes.
I accept Senators' concerns that anti-corruption provisions are contained in a number of Acts. The Minister for Justice, Equality and Law Reform has indicated on a number of occasions that the various Acts will be assembled and that they will be published as a restatement of the law on corruption under the Statute Law (Restatement) Bill when the latter is enacted. A commitment has been given that anti-corruption Acts will be contained in such a restatement at an early stage.
 Senator O'Toole is quite right that corruption is endemic in poorer or emerging states. A recently published index of the state of corruption in various countries revealed that corruption is linked to poverty. Countries like Finland are considered least corrupt while countries such as Bangladesh and Nigeria are considered most corrupt. It is a vicious circle in that poverty breeds bribery and corruption which lead to a failure of confidence among international communities which perpetrates poverty.
I agree with Senator Manning when he drew an important analogy for us about the danger that all politicians will be considered corrupt. He said that the very person who might make such an accusation would say that their local politician, who they know well, is hard working and honest. It is important that we always bear this in mind, that is, the difficulty of all of us being tarred with the one brush. That was precisely the point I tried to make in my opening speech – that allegations against some would be read by the public as an indication of a general malaise in public life. Most of us would consider this very offensive and would wish to take the steps necessary to prevent it. The Government has moved to put in place a code of ethics for public life, with particular reference to public representatives.
Senator O'Toole referred to bribery and corruption in the planning process. Section 4 provides for a presumption to arise in certain circumstances concerning decisions under the planning code where a person is being prosecuted for corruption. Where such a presumption arises, the burden will shift to the accused person to show a transaction was not corrupt. Such provisions are intended to aid the prosecution of corruption offences and recognise that in some cases the accused should be required to show that certain transactions were not corrupt. Most people will recognise the benefit of this provision.
There is general agreement among Members that effective legislative anti-corruption measures are required and the Bill will effectively address this issue. I thank the Senators who contributed to the debate.
Question put and agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: “That the Bill do now pass.”
Mr. Manning Mr. Manning
Mr. Manning: I compliment the Minister of State and thank her for her attendance in the House today. I urge her to bear in mind the points made by Senator O'Toole and me on the urgent need for some form of comprehensive, omnibus legislation to deal with all aspects of public life. Such legislation operates effectively in other countries. The Minister may wish to examine the model operated in Germany in which a  political party Act covers all aspects of electoral law, the behaviour of political parties during election campaigns and their role within parliament. The legislation also acknowledges, as we are now acknowledging for the first time, that political parties are important sociological institutions which, while they must obey certain rules, play a vital part in a State's political life and, therefore, should be adequately funded in terms of research, educational work and other activities which comprise a legitimate part of the political process. Perhaps the Minister of State would convey our views to the Minister and urge him to commence work in this area.
Mr. J. Cregan Mr. J. Cregan
Mr. J. Cregan: Although we did not agree earlier to complete our consideration of this important Bill today, I thank my Opposition colleagues, particularly Senator Manning, for facilitating its speedy passage. The sooner this legislation is on the Statute Book, the better for everyone. I thank the Minister of State for dealing thoroughly and efficiently with the Bill and for taking on board the constructive views expressed.
Miss M. Wallace Miss M. Wallace
Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): I thank the Senators who contributed to the debate on the legislation and facilitated its speedy passage. Senators Manning and O'Toole referred to the importance of consolidating the law in this area. I assure them that the relevant Acts on corruption will be consolidated and restated under the Statute Law (Restatement) Bill.
Question put and agreed to.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: When is it proposed to sit again?
Mr. J. Cregan Mr. J. Cregan
Mr. J. Cregan: Tuesday next, 3 July, at 12 noon.
Seanad Éireann 167 Prevention of Corruption (Amendment) Bill, 2000: Second and Subsequent Stages.