Five years after the Government initially published details of proposed new legislation to modernise Ireland's anti-corruption and bribery laws, the publication of a Bill now appears imminent. When enacted, the new legislation is likely to have significant implications for companies doing business in Ireland, similar to the UK Bribery Act, 2010.
Minister for Justice and Equality, Charles Flanagan, recently announced that the Criminal Justice (Corruption) Bill will be advanced in Autumn 2017, as part of a “broader, cross-Government package to tackle corruption”. Mr Flanagan has identified anti-corruption as a legislative priority. The Bill will apparently be part of a wider package of anti-corruption legislation – other legislation coming down the tracks includes: the Public Sector Standards Bill; the Judicial Appointments Commission Bill; and the Judicial Council Bill.
Minister Flanagan's announcement comes a few weeks after the publication of a Report by the Council of Europe's anti-corruption body, GRECO, criticising Ireland's corruption prevention record. It also follows on from unfavourable comment from Web Summit founder, Paddy Cosgrave, who was also critical of the Irish government's record in passing corruption legislation.
What do businesses need to know?
In 2012, the Government published the 'General Scheme' of the Bill, which provided a broad outline on the contents of the proposed new legislation. However this Bill has not been advanced since then.
Key points to note, based on the 2012 General Scheme of the Bill, and from recent commentary by the Minister for Justice, include the following:
- The Bill will effectively introduce strict liability for corporate bodies found guilty of corruption offences. The General Scheme proposes that a company can be held liable where an officer or employee of the company commits a corruption offence with the intention of obtaining a business advantage for the company.
Reasonable Steps / Due Diligence
- The only defence available to the company in this scenario will be to demonstrate that it took all "reasonable steps" and exercised all "due diligence" to prevent the corruption taking place. While we await more detail as to what will be required in this regard, the effect of these provisions is likely to be that companies will in essence be required to put in place anti-corruption and anti-bribery procedures to avoid potential strict liability, similar to the position in the UK under the Bribery Act. In the meantime, guidance published by the UK Government on 'adequate procedures' is perhaps an obvious reference point for Irish businesses which are now putting in place anti-bribery and anti-corruption policies and procedures.
- More generally, the Bill will repeal and replace the 'Prevention of Corruption Acts' – a complex set of seven statutes dating back to 1889. While the new legislation will retain many of the same concepts, the language which is proposed will be simpler and more modern. New offences will also be introduced, including for example 'trading in influence' and 'making reckless payments'.
Range of Penalties
- The Bill will extend the range of penalties which can be imposed – it is envisaged that the Irish police will be empowered to seize 'suspected bribes', although a Court order will be required to detain any seized property for more than 48 hours. Where a court order is granted, the Director of Public Prosecutions will be empowered to apply for the forfeiture of the suspected bribe, even where no proceedings have been brought against any person in respect of a substantive corruption offence.
It remains to be seen at what pace the legislation will be advanced. The Government is already under pressure to report back to the Council of Europe by March 2018, which may be a catalyst for progressing the legislation. In the meantime, businesses should take the necessary preparatory steps by putting in place appropriate anti-bribery and anti-corruption policies and procedures.