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 Header Item Emergency Measures in the Public Interest (Covid-19) Act 2020: Motion (Continued)
 Header Item Criminal Justice (Theft and Fraud Offences) (Amendment) Bill 2020 [Seanad]: Second Stage (Resumed)

Wednesday, 3 February 2021

Dáil Éireann Debate
Vol. 1003 No. 7

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  Question put and agreed to.

Criminal Justice (Theft and Fraud Offences) (Amendment) Bill 2020 [Seanad]: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

Deputy Thomas Pringle: Information on Thomas Pringle Zoom on Thomas Pringle I am sharing time with Deputy Connolly. The purpose of this Bill is to transpose EU Directive No. 2017/137, also known as the PIF directive. It will amend the 1994 and 2011 Criminal Justice Acts, the Criminal Justice (Theft and Fraud Offences) Act 2001 and other enactments. In his opening speech last week the Minister of State, Deputy James Browne, told us that the European Commission has been on to Ireland already with a "reasoned opinion" because the transposition is overdue. The Minister of State said, "This reasoned opinion is the final step before Ireland can be referred to the European Court of Justice, ECJ, where a fine will be imposed." Is it not amazing that the Dáil’s work schedule is being dictated by the threat of fines?

The PIF directive was issued on 5 July 2017 and some of its elements were already transposed into Irish legislation by way of the Criminal Justice (Corruption Offences) Act 2018. The directive’s aim is to strengthen the systems for fighting crime affecting the EU budget, fraud, and other offences against the financial interests of the EU. The deadline for transposition of the PIF directive was 6 July 2019. The Bill before us today belatedly deals with the outstanding matters mentioned and also provides for the creation of a new offence of misappropriation.

As usual, the Oireachtas Library and Research Service produced a very useful Bill digest. The section on the policy background highlights that there are varying estimates of the cost or damage of fraud to the EU’s budget annually. The European Anti-Fraud Office, OLAF, gives estimates of more than €500 million whereas there have been far higher estimates of up to €5 billion, including €1 billion in VAT fraud.

The PIF directive also provides for the new European Public Prosecutor's Office, EPPO. Under protocol 21, Ireland has opted out of participating in the EPPO for the time being. In January 2020, there was a regulatory impact analysis, RIA, on this Bill and two policy options were considered. One of the options was to introduce legislation and the other was, hilariously, to do nothing. The Bill digest states, "The RIA notes that the potential impact of doing nothing would include, 'costs to the State from the possible imposition of fines and potential reputation damage.'" The option to do nothing was only being considered six months after the deadline for transposition. We are already being fined for our tardiness regarding this EU directive, so the option of doing nothing is actually costing us money. How many times has the Cabinet sat around and said one of its options is do to nothing? I would say it happens quite often by the looks of things.

I often wonder what the Government is doing at all. There has been indecision around Covid-19 measures and roadmaps for reopening but no consideration of the preferred zero Covid approach and a full campaign around survivors accessing their testimonies to the Commission of Investigation into Mother and Baby Homes without the Government telling any of us, or the survivors, that the recorded testimonies had been deleted. Years of Brexit negotiations and aspects of negotiations around fisheries do not seem to have been considered at all. It was up to the fishermen themselves to campaign and raise awareness. Why is it always up to the affected groups and sectors to raise the Government's consciousness on important matters? Why is it always the many fighting for their rights, their livelihoods and their safety? Why is the Government squandering much needed Exchequer funds paying EU fines? Surely the Minister of State would agree there are services and projects to serve the people that would be a much better use of that money. It seems the EU is the only one that is responded to in time as well.

Deputy Catherine Connolly: Information on Catherine Connolly Zoom on Catherine Connolly Is iontach an rud é go bhfuil 20 nóiméad againn don Bhille seo. Tá sé ráite ag an Rialtas gur rud teicniúil é agus in ainneoin sin tá 20 nóiméad ann. Níos luaithe inniu bhí dhá nóiméad agam maidir le hábhar thar a bheith tábhachtach agus ní rud teicniúil a bhí ansin, sé sin, cumhachtaí an tOmbudsman do Leanaí. Glacaim leis an am go fonnmhar.

It is ironic that our group has 20 minutes to speak on a Bill that is described as technical and had five minutes for the motion on the Ombudsman for Children earlier, on which I would like to have expanded. I would have given my left arm for ten minutes on the Ombudsman's report or tomorrow's debate on mental illness. It is not the Minister of State's fault but it is interesting to put it in context. We have a full 20 minutes on a Bill that he has described as technical. I thank him for his written speech and the background to it. I also thank the Library and Research Service and gabhaim buíochas do Rannóg an Aistriúcháin as an ngluais a thug siad dúinn ionas go mbeadh muid in ann cúpla focal a rá trí Ghaeilge. Seo rud nua agus ba mhaith liom aitheantas a thabhairt don aistriúchán. Is éilliú gníomhach agus cionta éagsúla atáimid ag caint faoi anseo.

What can we do but welcome the Bill? I absolutely welcome a Bill that deals with corruption and fraud and creates new offences but, as my colleague said, this should have been done a long time ago. In fact, today is D-day, the day by which the Government was to reply to the Commission, so it is doubly ironic that we are here today. This should have been done before last July. The Bill digest makes for difficult reading. There was a "do nothing" scenario or one where we do something and doing nothing means we get a bad reputation and have to pay many fines. It raises the question of how we ended up having so much time, in the middle of a pandemic, to discuss a Bill that is technical and that should have gone through the Dáil nearly a year ago. How could that happen when this time should be used for the pandemic emergency? There are so many topics on which we would like to speak, to keep the Government on its toes and to make life easier for everybody, and here we are discussing a technical Bill. I acknowledge the work that went into it but it was belated and too late.

The Bill includes an expanded definition of fraud and a new offence of misappropriation. There is also provision for the liability arising from the offences of a corporate body. That is to be welcomed, although I am not sure how extensive it is. It will have to be monitored carefully. It also defines the scope of the European Public Prosecutor's Office, of which we are not a part. I do not know if the Minister of State will get a chance to speak on this again but I ask him to clarify the nature of our co-operation with that office. We did not opt into that section, and rightly so because we have a completely different legal system and it provides for an extension of European law into criminal law which is new and is a creeping jurisdiction. We have to be very careful. The directive allows for a European public prosecutor. How are we going to co-operate with that? What is the nature of our co-operation? Who will monitor the supra-national aspect? The prosecutor will be able to take action now in each country. I do not know whether it is good or bad, but I have concerns about the nature of our co-operation on something like that.

The extent of the fraud and corruption involved is anybody's guess. The Library and Research Service tells us there are two estimates, from the Commission's own estimate of €404 million to the House of Lords', which is €5 billion. We were very grateful to the House of Lords lately for its attitude to certain aspects of Brexit and we should be grateful to it again as it is telling us that its estimate is at the very least €5 billion and that that is only the tip of the iceberg. That is interesting in itself.

I will move on to the report by the Department of Justice's review group on corruption in Ireland. It would be nice to know when we are going to have a discussion on that. Perhaps the Minister of State could come back with a clarification on why this directive was not transposed in time. Are we facing any fines and what is the extent of our co-operation with this office that transcends and crosses borders?

The Department of Justice published a review group report on structures and strategies to prevent, investigate and penalise economic crime and corruption. We are talking about Ireland here. It is a very interesting report. There are about 122 pages if one leaves out the appendices. The foreword is very interesting because it is written by James Hamilton, the former Director of Public Prosecutions. It is dated 9 November 2020. It states, "The Review Group was established as part of a package of measures to enhance Ireland’s ability to combat economic crime." It uses the term "economic crime" in order to have a broader view of crime and corruption which would include social welfare. To me, social welfare is way down as regards crimes but the term "economic crime" includes it. The foreword further states, "The Report identifies a number of strengths and weaknesses in the existing structures for dealing with economic crime and corruption [in Ireland]".

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