Implementing UNCAC recommendations

This commitment refers to twelve recommendations made by the UNCAC Review Mechanism evaluation team in their Executive Summary of May 2019.[1] Several of these items are also included in the Hamilton Review (see Commitment 12) and its Implementation Plan[2] are currently being progressed. Implementation Plan commitments  include the establishment of a “cross-sectoral” Advisory Council, review of ethics in public office legislation, improved resourcing of anti-corruption authorities, and amendments to money laundering legislation. The Judicial Council was established in December 2019. A full list of the recommendations and their status is set out below:

 

1. Set up an anti-corruption inter-agency steering committee to better coordinate corruption prevention efforts. Partially fulfilled

The Implementation Plan (see above) calls for the establishment “on a permanent basis of a cross-sectoral partnership-based Advisory Council against Economic Crime and Corruption to advise and make proposals on strategic and policy responses to economic crime and corruption” as well as the establishment “on a formal and permanent basis of a forum of senior representatives from the relevant bodies”.[3] The Department of Justice has confirmed that the latter is already in place^[4] and that membership of the Advisory Council is being finalised pending full establishment in mid-2022.^[5]

 

2. Ensure adequate resourcing and staffing of preventive authorities, particularly of the Anti-Corruption Unit within An Garda Síochána [Irish police]; clarify their tasks with regard to prevention. Partially fulfilled

The Implementation Plan (see above) includes a section on resourcing, with a commitment to “Develop a long-term strategic plan to ensure adequate resources are available to the Garda National Economic Crime Bureau (GNECB)”[6], of which the Anti-Bribery and Corruption Unit is a part. The long-term resourcing proposal was due for completion at the end of July 2021.[7] Available information indicates that staffing of the GNECB was increased by 17 (almost 24 per cent) in April 2021, with assignment of more personnel scheduled.[8] This recommendation also refers to resourcing of the Office of the Director of Corporate Enforcement (ODCE)/Corporate Enforcement Authority (CEA). This budget has been increased by 20 per cent and there has also been a 35 per cent increase in the allocation of staff from the civil service.[9]

Further commitments in the Implementation Plan refer to resourcing of the Standards in Public Office Commission (SIPO) and Office of the Director of Public Prosecutions (DPP).[10] Budgetary estimates for 2022 indicated an increase of 1 per cent in funding for SIPO and 6.8 per cent for the DPP.[11] The GNECB is not specified in budgetary estimates.

 

3. Consider lowering the limits in relation to gifts to public officials that are subject to mandatory declaration and refusal or remittance. Partially fulfilled

Limits on gifts to public officials (as well as other benefits, favours, etc.) are included in the review of ethics in public office legislation currently being carried out by the Department of Public Expenditure and Reform.[12]

 

4. Establish a Judicial Council with a mandate to adopt a code of conduct for judges. Fulfilled

The Judicial Council was established in December 2019.[13] The Judicial Conduct Committee has drafted guidelines for judicial conduct for review by the Board of the Judicial Council, which may be amended before adoption. The latest date for adoption of a code of conduct is June 2022.[14]

 

5. Continue promoting appropriate corporate governance standards by adopting codes of conduct for a wider range of businesses and relevant professions. Partially fulfilled

The Companies Act 2014 sets out extensive statutory requirements related to corporate governance.[15] Up to now, these have been enforced by the Office of the Director of Corporate Enforcement (ODCE). The Companies (Corporate Enforcement Authority) Bill 2021[16] passed all stages of the Houses of the Oireachtas (parliament) in December 2021 and will replace the current ODCE, an office of the Department of Enterprise, Trade and Employment, with the Corporate Enforcement Authority (CEA), an independent statutory body.[17] The CEA will continue to promote good corporate governance standards, encourage compliance with the provisions of the Companies Act 2014, investigate non-compliance, prosecute summary offences and refer other offences to the Director of Public Prosecutions.

Section 225(3) of the Companies Act 2014 requires directors to put in place “appropriate arrangements or structures that are… designed to secure material compliance with the company’s relevant obligations” and to include in the company’s annual report a “compliance policy statement” setting our details of relevant policies. Specific policies and codes of conduct are largely set out by individual companies or autonomous regulatory or professional bodies.[18] The Company Law Review Group Work Programme 2020-2022, for instance, includes an undertaking to review the obligations in relation to directors’ compliance statements and to make recommendations “as to how these might be enhanced in the interest of good corporate governance”.[19]

 

6. Consider establishing a single, unified anti-money-laundering supervisory authority for designated non-financial businesses and professions. Not fulfilled

The Department of Justice in response to this item stated that “Designated Non-Financial Persons and Bodies encompass a wide variety of economic actors, many of whom have existing self-regulatory bodies in Ireland that function as competent authorities in respect of their members”. The Department of Justice itself is also responsible for supervision of some DNFBPs: As noted in TI Ireland’s report Safe Haven? Targeting the Proceeds of Foreign Corruption in Ireland, supervision “is divided between the Central Bank of Ireland for credit and financial institutions, the PSRA [Property Services Regulatory Authority] for the property sector, self-regulating professional bodies for the legal and accounting sectors […], and the [Department of Justice] for all other DNFBPs”.[20] There is no indication that a single anti-money laundering authority for designated non-financial businesses and professions [DNFBPs] is under consideration.

 

7. Finalise the transposition of the fourth European Union anti-money-laundering directive to address the existing gaps in its anti-money-laundering/counterterrorist financing legislation, notably on beneficial ownership registers. Fulfilled

The Criminal Justice (Money Laundering and Terrorist Financing) Amendment Act 2018 transposed most provisions of the fourth EU anti-money-laundering directive, extending obligations in relation to due diligence and reporting of suspicious transactions.[21] Transposition was completed with the European Union (Anti-Money Laundering Beneficial Ownership of Corporate Entities) Regulations 2019.[22] The Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 gave effect to provisions of the fifth EU anti-money laundering directive.[23]

 

8. Consider requiring public officials having an interest in or signature or other authority over a financial account in a foreign country to report that relationship. Partially fulfilled

The criteria for declaring interests and the “current disclosure regime” are under consideration in the review of ethics in public office legislation currently being carried out by the Department of Public Expenditure and Reform.[24]

 

9. Ensure that the Central Authority exercises its discretion under section 51 of the MLA Act [the Criminal Justice (Mutual Assistance) Act 2008[25]] in a way that observes the binding obligations under article 55(1) and (2) [of the fourth EU anti-money laundering directive]. Fulfilled

According to Section 8 of the Criminal Justice (Mutual Assistance) Act 2008, the Minister for Justice is the Central Authority and “has the function of receiving, transmitting and otherwise dealing with requests… and of co-operating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states in relation to requests received from them”.[26] The Department of Justice has confirmed that the Central Authority continues to exercise its discretion when determining confiscation cooperation orders.

 

10. Ensure that international cooperation for purposes of article 55(1) and (2) regarding Convention offences can be provided to all States parties, regardless of their current designation under the MLA Act [the Criminal Justice (Mutual Assistance) Act 2008][27] (art. 55(6)), including by specifically designating all States parties to the Convention for the purposes of the MLA Act or clearly designating the Convention as a sufficient legal basis for these purposes. Partially fulfilled

The Department of Justice has responded to a request for information on this point by stating that “In consultation with Department of Foreign Affairs, the final text of a statutory instrument designating all current States parties to the UN Convention against Corruption for mutual assistance has been completed. When signed into law by the Minister for Foreign Affairs, this order will fully address the recommendation to ensure that international cooperation for the purposes of the Convention can be provided to all States parties to the Convention”.

 

11. Ensure that the MLA Act [the Criminal Justice (Mutual Assistance) Act 2008][28] clearly provides for the return of confiscated property which is a sum of money to any State party, in accordance with (art. 57(2) and (3)). Partially fulfilled

The Department of Justice has responded to a request for information on this point by stating that “An assessment and decision on the process to make the necessary legislative amendment will be made in early 2022”.

 

12. Consider concluding further bilateral or multilateral agreements or arrangements to enhance the effectiveness of international cooperation beyond the member States of the European Union. Partially fulfilled

The Department of Justice has responded to a request for information on this point by stating that “Ireland is currently considering the negotiation of additional bilateral agreements in the area of mutual legal assistance and extradition with a number of countries beyond the EU member states”.

 

 

Challenges to effective commitment implementation

The recommendations require significant coordination across several government departments, in many cases involving extensive review of current anti-corruption frameworks (e.g., to incorporate an anti-corruption inter-agency steering committee, address policing of corruption and how it is resourced) and, in certain cases, the passage of legislation (e.g., transposition of EU anti-money laundering directives, updates to ethics legislation in connection with disclosure of interests by public officials, or to establish the Judicial Council). These processes are lengthy and require sufficient resourcing, coordination and political prioritisation. Certain recommendations have been implemented already, for instance transposition of the fourth EU anti-money laundering directive (as well as the fifth) and establishment of the Judicial Council. However, the Public Sector Standards Bill 2015 foundered in 2020 (as discussed elsewhere in this report), and the Garda National Economic Crime Bureau has been under-resourced on a long-term basis[29] with little improvement in recent years despite resourcing recommendations.[30]

Opportunities to accelerate commitment implementation

The overlap between several UNCAC recommendations and the recommendations of the Hamilton Review show that there is a consensus on the key issues. The translation of these recommendations into action points in the Hamilton Review Implementation Plan and their inclusion in the Programme for Government (e.g., reform of ethics in public office legislation) demonstrates that there is a coherent vision and clear intent to push ahead with these reforms.

Recommendations

Of the twelve recommendations outlined above, three have been fulfilled and a further eight are ongoing – mainly in connection with actions arising from the Hamilton Report, which is discussed further in connection with Commitment 12. One UNCAC recommendation has not been implemented, which is the establishment of a single, unified anti-money-laundering supervisory authority for designated non-financial businesses and professions (DNFBPs). TI Ireland, in the 2021 report Safe Haven? Targeting the Proceeds of Foreign Corruption in Ireland, argues that “the scale and extent of regulatory enforcement by the [Department of Justice] and other DNFBP supervisors remains inconsistent with the scale and extent of money laundering through Ireland”[31] and echoes the UNCAC recommendation that a single authority be established to supervise DNFBPs.[32]

[1]  United Nations, Review of implementation of the United Nations Convention against Corruption: Executive Summary, pp. 8 – 10, https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/ExecutiveSummaries2/V1900570e.pdf.

[2] Department of Justice Ireland, A review of structures and strategies to prevent, investigate and penalise economic crime and corruption: Implementation Plan, https://www.justice.ie/en/JELR/HRG_Implementation%20Plan.pdf/Files/HRG_Implementation%20Plan.pdf

[3] Ibid, pp. 2-3.

^[4] Department of Justice Ireland, Minister Humphreys announces appointment process for Chairperson and ordinary members of the Advisory Council against Economic Crime and Corruption, https://www.gov.ie/en/press-release/d5a4d-minister-humphreys-announces-appointment-process-for-chairperson-and-ordinary-members-of-the-advisory-council-against-economic-crime-and-corruption/; A Forum of senior representatives from the relevant operational bodies was recently established on a formal and permanent basis to facilitate greater inter-agency co-ordination, collaboration and information-sharing among operational agencies.

^[5] Ibid.

[6] Ibid, p. 3.

[7] Department of Justice Ireland, A review of structures and strategies to prevent, investigate and penalise economic crime and corruption: Implementation Plan, p. 4, https://www.justice.ie/en/JELR/HRG_Implementation%20Plan.pdf/Files/HRG_Implementation%20Plan.pdf

[8] Houses of the Oireachtas 2022, Response to Parliamentary Question 114 of 3 June 2021, https://www.oireachtas.ie/en/debates/question/2021-06-03/114/

[9] Department of Enterprise, Trade and Employment Ireland, Minister Troy welcomes the successful passage of legislation to establish Corporate Enforcement Authority, https://www.gov.ie/en/press-release/f679d-minister-troy-welcomes-the-successful-passage-of-legislation-to-establish-corporate-enforcement-authority-cea/

[10] Department of Justice Ireland, A review of structures and strategies to prevent, investigate and penalise economic crime and corruption: Implementation Plan p. 4, https://www.justice.ie/en/JELR/HRG_Implementation%20Plan.pdf/Files/HRG_Implementation%20Plan.pdf..

[11] Government of Ireland, Revised Estimates for Public Services 2022, p. 80 (SIPO) and p. 16 (DPP), https://assets.gov.ie/207416/1ebb916d-9839-458f-a4df-9fa77be9b7de.pdf

[12] Department of Public Expenditure and Reform Ireland, Reform and Consolidation of Ireland’s Statutory Framework for Ethics in Public Life, p. 10, https://assets.gov.ie/205516/db157ad8-1e23-4b4f-bf3f-571fed0d9444.pdf

[13] Judicial Council Ireland, Establishment of the Judicial Council Tuesday 17th December 2019, https://judicialcouncil.ie/news/17th-december-2019-judicial-council-established-in-law/

[14] Judicial Council Ireland, Updates on the Judicial Conduct Committee 28 June 2021, https://judicialcouncil.ie/judicial-conduct-committee/

[15] Government of Ireland, Companies Act 2014, https://www.irishstatutebook.ie/eli/2014/act/38/enacted/en/print.html.

[16] Houses of the Oireachtas, Companies (Corporate Enforcement Authority) Bill 2021, https://www.oireachtas.ie/en/bills/bill/2021/107/

[17] Department of Enterprise, Trade and Employment Ireland, Minister Troy welcomes the successful passage of legislation to establish Corporate Enforcement Authority, https://www.gov.ie/en/press-release/f679d-minister-troy-welcomes-the-successful-passage-of-legislation-to-establish-corporate-enforcement-authority-cea/

[18] For example: Law Society of Ireland, A Guide to Good Professional Conduct for Solicitors 3^rd Edition, https://www.lawsociety.ie/globalassets/documents/committees/conduct-guide.pdf; Irish Tax Institute, Code of Conduct & Complaints Process, https://taxinstitute.ie/members-2/professional-standards/

[19] Company Law Review Group, Work Programme 2020-2022, http://www.clrg.org/work-programme/

[20] Transparency International Ireland, Safe Haven? Targeting the proceeds of foreign corruption in Ireland, p. 21, https://transparency.ie/sites/default/files/tii_safehavenreport_v4.pdf

[21] Government of Ireland, Criminal Justice (Money Laundering and Terrorist Financing) Amendment Act 2018, https://www.irishstatutebook.ie/eli/2018/act/26/enacted/en/print.html

[22] Government of Ireland, European Union (Anti-Money Laundering Beneficial Ownership of Corporate Entities) Regulations 2019, https://www.irishstatutebook.ie/eli/2019/si/110/made/en/print

[23] Government of Ireland, Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021, https://www.irishstatutebook.ie/eli/2021/act/3/enacted/en/print.html

[24] Department of Public Expenditure and Reform Ireland, Reform and Consolidation of Ireland’s Statutory Framework for Ethics in Public Life, p. 10, https://assets.gov.ie/205516/db157ad8-1e23-4b4f-bf3f-571fed0d9444.pdf

[25] Government of Ireland, Criminal Justice (Mutual Assistance) Act 2008, https://www.irishstatutebook.ie/eli/2008/act/7/enacted/en/print.html.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] “By comparison with 1992 when the Maguire Report [report of the Government Advisory Committee on Fraud] was published the problem of understaffing in the GNECB which existed at that time has actually got worse. Resourcing, which was already insufficient in 1992, has not kept pace with the growing volume and complexity of economic crime and with international demands and obligations”. Department of Justice Ireland, Review of structures and strategies to prevent, investigate and penalise economic crime and corruption: Report of the Review Group, p. 59, https://www.justice.ie/en/JELR/Hamiliton_Review_Group_Report.pdf/Files/Hamiliton_Review_Group_Report.pdf

[30] Irish Examiner, Garda fraud unit is still short of up to 50 detectives, https://www.irishexaminer.com/news/arid-40233953.html; Irish Times, Corporate enforcer had to wait a year for allocation of detectives, https://www.irishtimes.com/business/retail-and-services/corporate-enforcer-had-to-wait-a-year-for-allocation-of-detectives-1.4666320

[31] Transparency International Ireland, Safe Haven? Targeting the proceeds of foreign corruption in Ireland, p. 25, https://transparency.ie/sites/default/files/tii_safehavenreport_v4.pdf

[32] Ibid., p. 33.