Investigation of complaints under the Ethics in Public Office Acts 1995 and 2001

Section 22 of the Ethics in Public Office Act 1995 (the 1995 Act) allows certain categories of person to make complaints to the Standards in Public Office Commission (the Standards Commission) about alleged contraventions of the 1995 Act by different classes of person who have obligations under that Act. Section 4 of the Standards in Public Office Act 2001 (the 2001) Act allows any person to make a complaint to the Standards Commission about an alleged "specified act" by a "specified person". These provisions are set out in more detail below.

Section 22 Complaints

The following persons can make a complaint to the Standards Commission about an alleged contravention of the disclosure provisions of the 1995 Act:

A member of the public can complain about:

• an office holder (i.e. the Taoiseach, the Tánaiste, a Minister, a Minister of State and the Chairman and Deputy Chairman of Dáil Éireann and of Seanad Éireann). 
  

A member of Dáil Éireann or of Seanad Éireann can complain about:

• the Attorney General (if not a member of Dáil Éireann or of Seanad Éireann);
• an office holder;
• a designated director of a public body;
• the occupier of a designated position of employment in a public body or
• a special adviser.
  

The Minister for Finance can complain about the following, unless the person complained about is an office holder:

• the Attorney General (if not a member of Dáil Éireann or of Seanad Éireann);
• a designated director of a public body;
• the occupier of a designated position of employment in a public body or
• a special adviser.
  

A Minister of the Government can complain about:

• a designated director of a public body in respect of which functions of the public body stand conferred on the Minister making the complaint;
• the occupier of a designated position of employment in a Department/Office of which the Minister making the complaint has charge;
• the occupier of a designated position of employment in a public body in respect of which functions stand conferred on the Minister making the complaint, or
• a special adviser;
• a public body for which directorships or positions of employment have been prescribed as designated directorships or designated positions can complain about a designated director of or the occupier of a designated position of employment in that body;
• The "appropriate authority" (within the meaning of the Civil Service Regulation Act, 1956, but excluding a Minister of the Government) in relation to a civil servant may complain about a civil servant who is a designated director or the occupier of a designated position of employment;
• The Committee on Members' Interests of Dáil Éireann or the Committee on Members' Interests of Seanad Éireann can complain about a member of Dáil Éireann or of Seanad Éireann (as appropriate).

Either Committee on Members' Interests can also refer a complaint made or referred to it about a member to the Standards Commission who is alleged to have contravened the disclosure provisions of the Ethics Acts or to have done a "specified act" (see below).  (A member of the public may complain to the Clerk of the relevant House about a member of the Oireachtas who is not an office holder.  If certain conditions are met, the Clerk will refer the complaint to the relevant Committee on Members' Interests).

Section 4 Complaints

Any person can make a complaint to the Standards Commission where he or she considers that a "specified person" (i.e. an office holder but not an ordinary member of Dáil Éireann or Seanad Éireann, the Attorney General (if not a member of Dáil Éireann or Seanad Éireann), a special adviser, a designated director of a public body, the occupier of a designated position of employment in a public body, a director or an employee of a public body) or a person who is a connected person may

1. have done a "specified act";
2. contravened a provision of the Ethics Acts or
3. contravened a provision of the Electoral Act 1997, as amended (the Electoral Acts).

A specified act is an act made or an omission done after the commencement of Section 2 of the 2001 Act (i.e. after 10 December 2001) that is, or the circumstances of which are, such as to be

• inconsistent with the proper performance by the specified person of the functions of the office or position by reference to which he or she is such a person or
• with the maintenance of confidence in such performance by the general public, and
• the matter is one of significant public importance.

The 2001 Act provides that "without prejudice to the generality of the expression 'significant public importance'... a matter shall, if the Standards Commission consider it appropriate to do so having regard to all the circumstances, be deemed by it, for the purposes of that subsection, to be of significant public importance if it relates to a benefit alleged to have been received by a specified person or a person who, in relation to a specified person, is a connected person and, in the opinion of the Standards Commission, the value of the benefit was, is or might have been or be expected to be or to become not less than £10,000" (€12,697).

Form of complaints

Other than providing that all complaints made under section 22 of the 1995 Act and section 4 of the 2001 Act are to be made “in writing“, the Ethics Acts are silent on the form that such complaints should take. However, in order to enable the Standards Commission to discharge properly its function of deciding whether or not it is appropriate to carry out an investigation of a complaint, it is essential that it be as detailed and as specific as possible. The Standards Commission is, therefore, of the view that every complaint made under section 22 of the 1995 Act and section 4 of the 2001 Act should clearly identify the person against whom the complaint is made, should specify the alleged contravention of the provisions of the 1995 Act and/or the 2001 Act which is the subject-matter of the complaint and set out in detail the basis for alleging that contravention. Where documentary material is relevant, copies of that material should be furnished with the complaint where possible.

Anonymous complaints

Section 8 of the 2001 Act precludes the Standards Commission from investigating a complaint made to it unless the identity of the person making the complaint is disclosed. However, section 8 permits the Standards Commission, if it considers it appropriate to do so, to restrict the disclosure of such identity to those persons whom the Standards Commission is of the view should know the identity of the person making the complaint for the purposes of or by reason of the investigation of the complaint or otherwise in the interests of justice.

Investigation

The procedures which the Standards Commission would follow in any case where it considered that an investigation under the Ethics Acts into the matter complained of was appropriate, are set out in its 'Statement of Intended Procedures'.

Investigation of complaints received under the Electoral Acts:

As stated above, the Standards Commission may, in accordance with section 4 of the Standards in Public Office Act 2001 investigate a complaint made by a person who considers that a "specified person" may have contravened the Electoral Acts.

However, the Standards Commission has a separate supervisory function to ensure that the provisions of the Electoral Acts are complied with. Where a person considers that the Electoral Acts may have been contravened, whether by a "specified person" or otherwise, he /she may contact the Standards Commission, which, if it considers it appropriate to do so, will investigate the matter.

Section 4(4) of the Electoral Acts provides that the Standards Commission may make such enquiries as it considers appropriate and may require any person to furnish any information document or thing in the possession or procurement of the person which the Standards Commission may require for the purposes of its duties under the Electoral Acts.