Combined Section 15/16 Manual of the Standards Commission

2.1 Requirements of the Ethics Acts

A. Statements of Interests

The Ethics Acts provide a framework for the disclosure of interests by

1. Members of Dáil Éireann and Seanad Éireann (Members),
2. Office Holders (i.e. Ministers, Ministers of State, the Chairman and Deputy Chairman of both Dáil Éireann and Seanad Éireann),
3. The Attorney General,
4. Ministerial special advisers,
5. Holders of Directorships in state bodies designated by the Minister for Finance as falling within the scope of the Ethics Acts (Designated Directors),
6. Occupiers of positions of employment in the Civil and Public Service designated by the Minister for Finance as falling within the scope of the Ethics Acts (Designated Positions).

Registrable interests are defined in the Second Schedule to the Ethics Acts and include employments, shareholdings, directorships, holding of land or other property, gifts, supplies of property or services, travel facilities, consultancies and contracts to a Minister or a public body.

1) Members of the Houses of the Oireachtas.

Members of the Houses of the Oireachtas (Members) must furnish an annual statement of their registrable interests to the Standards Commission. These are then forwarded by the Standards Commission to the Clerk of the Dáil or Seanad, as appropriate. Each Clerk will then establish a register (known as the Register of Interests of Members of Dáil Éireann or the Register of Interests of Members of Seanad Éireann, as may be appropriate). A Member must also disclose any 'material interest' he / she, or a connected person might have in the proceedings of either House if they intend to vote or speak in such proceedings. Proceedings of the House include a Member's participation in a Committee of either House or a Joint Committee of the Houses. Disclosure of a material interest in proceedings is not required where that interest has already been disclosed in an annual statement of registrable interests of the Member which, or a copy of which, has been laid before the House.

2) Office Holders

In addition to furnishing statements of their own interests as a Member, an Office Holder is also required to submit, on an annual basis, a statement of his / her additional interests.

The Statement of Additional Interest form is furnished by the Office Holder to the relevant Clerk. Copies of Office Holders' Statements of Additional Interests are provided by the Clerks to the Standards Commission. Copies of the Statements of Additional Interests of Ministers and Ministers of State are also furnished by the Clerk of Dáil Éireann to the Taoiseach. Information contained in an Office Holder's Statement of Additional Interests is not published or disclosed except in specific circumstances provided for under the Ethics Acts. The Statements of Additional Interests must be retained on file for a statutory period of fifteen years.

Where an Office Holder proposes to perform a function of office and has actual knowledge that he or she, or a connected person, or another Office Holder, or a person connected to another Office Holder, has a material interest in a matter to which the function relates, that first Office Holder is required to furnish a statement in writing of the facts and of the nature of the interest.

• Where the first Office Holder is the Taoiseach, the statement should be provided to the Chairman of the Standards Commission.
• Where the first Office Holder is a Minister or Minister of State, the statement should be provided to the Standards Commission and to the Taoiseach.
• For all other Office Holders, the statement should be provided to the Standards Commission.

If an Office Holder, or a person acting on behalf of an Office Holder, proposes to make a request to another Office Holder, in relation to the performance of a function by the second Office Holder, and if the first Office Holder has actual knowledge that he or she, or a connected person has a material interest in a matter to which the function relates, he or she must furnish, to the second Office Holder, a statement in writing of the facts and of the nature of the material interest. The second Office Holder is then required to provide a statement in writing of the facts and of the nature of that interest as follows:

• Where the second Office Holder is the Taoiseach, the statement should be provided to the Chairman of the Standards Commission.
• Where the second Office Holder is a Minister or Minister of State, the statement should be provided to the Standards Commission and the Taoiseach.
• In the case of all other Office Holders, the statement should be provided to the Standards Commission.

Where an Office Holder knows or believes that another Office Holder, who is a member of the Government, or a person who, in relation to that other Office Holder, is a connected person, has a material interest in a matter to which a function of the Government relates, and this knowledge or belief derives solely from a statement made by that other Office Holder or for the purpose of a meeting of the Government, it will not be necessary for the first Office Holder to furnish a statement in relation to the other Office Holder. Instead a statement should be forwarded by the Taoiseach to the Standards Commission.

3) Attorney General (who is not a Member)

Where the Attorney General is a Member, he / she completes his / her Statements of Interests as in (1) above.

Where the Attorney General is not a Member he / she completes annually a Statement of Interests which is issued to him / her by the Department of Finance. This is a combined Statement incorporating any material interests of the Attorney General, as well as any additional interests of a spouse, a child or a child of a spouse. The Statement of Interests is submitted both to the Standards Commission and to the Taoiseach.

Where the Attorney General or a connected person has a material interest in a function to be performed, he / she must notify both the Standards Commission and the Taoiseach in writing of the facts and nature of the interest. This should be done before or as soon as may be after the performance of the function.

4) Special Advisers

There are two forms which must be completed annually by special advisers whose remuneration exceeds the maximum salary (standard scale, Class B PRSI) of a Higher Executive Officer in the Civil Service:

• A Statement of the Special Adviser's own material interests.
• A separate Statement of Additional Interests of a spouse, a child or a child of a spouse of a special adviser.

Both forms must be provided to the employing Office Holder and to the Standards Commission.

Where a function falls to be performed and the special adviser has knowledge that he, she or a connected person has a material interest in a matter to which the function relates, he or she must furnish a statement of the facts, in writing, to the Standards Commission and to the employing Office Holder. The person must not carry out the function unless there are compelling reasons for him or her to do so. In that case, he or she must furnish to the Standards Commission and the employing Office Holder before, or if that is not reasonably possible, as soon as may be after the performance of the function, a statement in writing of the compelling reasons.

The employing Office Holder is required to lay before each House of the Oireachtas the following documents in relation to any special advisers employed by him / her whose remuneration exceeds the maximum salary (standard scale, Class B PRSI) of a Higher Executive Officer in the Civil Service:

1. a copy of the contract, or a statement in writing of the terms and conditions of the special adviser's employment
2. a statement of the special adviser's qualifications relevant to his / her functions
3. a copy of the statement of own interests (not those of his / her spouse, his / her children or the children of his / her spouse) furnished by the special adviser to the Office Holder, and
4. a statement as to whether the special adviser is a relative of the Office Holder

 
5) Designated Directors

Holders of designated directorships in public bodies are required annually to submit a combined statement of their own interests and those of a spouse, a child or a child of a spouse. Designated directors are required to submit their Statement of Interests to an officer of the body as determined by the Minister for Finance and to the Standards Commission.

Where a function falls to be performed and a designated director has knowledge that he, she or a connected person has a material interest in a matter to which the function relates, he or she must furnish a statement of the facts, in writing, to the other directors. The person must not carry out the function unless there are compelling reasons for him or her to do so. In that case, he or she must furnish to the Standards Commission and the other directors before, or if that is not reasonably possible, as soon as may be after the performance of the function, a statement in writing of the compelling reasons.

6) Occupiers of designated positions in public bodies

Occupiers of designated positions in the Civil and Public Service are required annually to submit a combined statement of their own material interests and those of a spouse, a child or a child of a spouse. Holders of designated positions are required to submit their Statement of Interests to the relevant authority as determined by the Minister for Finance.

Where a function falls to be performed and the occupier of a designated position has knowledge that he, she or a connected person has a material interest in a matter to which the function relates, he or she must furnish a statement of the facts, in writing, to the officer of the body / relevant authority. The person must not carry out the function unless there are compelling reasons for him or her to do so. In that case, he or she must furnish to the officer of the body / relevant authority before, or if that is not reasonably possible, as soon as may be after the performance of the function, a statement in writing of the compelling reasons.

None of the above statements from occupiers of designated positions are furnished to the Standards Commission as a matter of course. The statements must, however, be made available to the Standards Commission if so requested.

Changes to Statements of interests

Where the registrable interests or additional interests of a person change, the person may at any time furnish a statement in writing of the changes. Such statements are generally furnished to the person or persons to whom annual statements are required to be made.

Voluntary Statements of Interests

Where a person who is covered by the provisions of the Ethics Acts has an interest that is not set out in definition of Registrable Interests provided in the Second Schedule to the Ethics Acts, or the person (other than a Member who is not an Office Holder) has actual knowledge that his or her spouse or child or a child of the spouse has such an interest, the person may, at any time, furnish a statement of that interest to the person or persons nominated to receive such statements. Where a "Voluntary Statement" is provided, the provisions of the Act apply and have effect as if the interest was an interest set out in the Second Schedule to the Ethics Acts.

B. Tax Compliance

The Ethics Acts introduced provisions, with effect from 10 December, 2001, requiring the production of evidence of compliance with certain taxation legislation by Members following their election and by the Attorney General, appointees to "senior office" and appointees to judicial office following their appointment.

The taxation legislation includes:

• the Tax Acts,
• the Capital Acquisitions Tax Act 1976 and the enactments amending or extending that Act,
• the Capital Gains Tax Acts,
• the Value-Added Tax Act 1972, and the enactments amending or extending that Act.

The evidence of compliance required is as follows;

• a Statutory Declaration to the effect that, at the time of its making, the person was, to the best of his or her knowledge or belief, in compliance with the obligations imposed on him or her by the Tax Acts and that they are not aware of any impediment to the issue of a Tax Clearance Certificate; and either
• a Tax Clearance Certificate which will issue, on application, from the Collector General, where a person is in compliance with the obligations imposed by the Tax Acts;

or

• an Application Statement which indicates that an application for a Tax Clearance Certificate is either awaiting decision or that the refusal of a Tax Clearance Certificate is under appeal (there is no provision for the issuing of an application statement to a person recommended for appointment to judicial office).

The Statutory Declaration must be made within a period of one month before or one month after the person was elected / appointed. The Tax Clearance Certificate must have been issued to the person within a period of 9 months before or 9 months after the person was elected / appointed, other than in the case of an appointment to judicial office where it must have been issued to the person not more than 18 months before the date of recommendation by the Judicial Appointments Advisory Board. The Application Statement must have issued to the person not more than nine months before and not more than nine months after the person was elected / appointed.

The Collector General will notify the Standards Commission in writing of any final refusal to issue a Tax Clearance Certificate applied for under the 2001 Act. Final refusal would mean that the Application Statement had become null and void, that all avenues of appeal had been exhausted and that a Tax Clearance Certificate would not be issued.

All elected Members (including persons who are nominated to the Seanad by An Taoiseach) are obliged to provide evidence of compliance with the taxation legislation to the Standards Commission within 9 months of election.

An Attorney General who is not a Member is obliged to provide evidence of compliance with the taxation legislation to the Standards Commission within 9 months of the date of his / her appointment.

All persons who are appointed to "senior office" must produce evidence of compliance with the taxation legislation to the Standards Commission within 9 months of the date of appointment.

The Standards Commission has no functions with regard to evidence of compliance with the taxation legislation by appointees to judicial office. All persons who are being recommended for appointment to judicial office must have provided such evidence to the Judicial Appointments Advisory Board.

C. Codes of Conduct

Section 10 of the 2001 Act provides for the introduction of codes of conduct for the following categories:

• Members of Dáil Éireann and Seanad Éireann (other than Office Holders);
• Office Holders;
• directors and employees of public bodies.

All codes of conduct published in accordance with the 2001 Act set out standards of conduct and integrity expected to be observed by the persons to whom they relate in the performance of their official duties. Codes of conduct under the 2001 Act are admissible in any proceedings before a Court or other tribunal, the Committees of Members’ Interests of Dáil and Seanad Éireann or the Standards Commission and any provision of a code that appears to a tribunal, a Committee or the Standards Commission to be relevant to a question in the proceedings may be taken into account in determining the question.

D. Offences and Penalties

There are a number of offences provided for in the Ethics Acts. These offences mainly relate to a failure to co-operate with the Standards Commission (or the Committees of Members' Interests of Dáil or Seanad Éireann) in the course of an investigation under the Ethics Acts. Failure to co-operate can include refusal to attend before the Standards Commission, to take the oath, to answer questions, to produce, or to fail to send, any document or thing to the Standards Commission, or any other action or inaction which in a court would be regarded as contempt.

A person who gives false evidence before the Standards Commission will be guilty of the offence of perjury.

A person who hinders or obstructs the Standards Commission, a member of its staff, or an Inquiry Officer will be guilty of an offence.

There is also an offence for disclosing information obtained under the Ethics Acts, or by being present at a sitting of the Standards Commission held in private. There are, however, specific circumstances in which such information can be disclosed without committing an offence (see section 2.3 below).

A person who is found guilty of an offence under the Ethics Acts will be liable, on summary conviction, to a fine of up to €1,250 and/or a term of imprisonment of up to six months. On indictment, the fine can be up to €25,000 and/or a term of imprisonment of up to three years.

Where an offence is committed by a body corporate, and is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of any person, whether a director, manager, secretary or other officer of that body, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, will be guilty of an offence and will be liable to be proceeded against and punished as if he or she were guilty of the offence.

A person who takes disciplinary action against a person who makes a complaint under the Ethics Acts to the Standards Commission, the appropriate Committee on Members' Interests or the relevant Clerk and who reasonably believes that the complaint has been made to the appropriate person and is one which falls to be investigated under the 1995 Act is guilty of an offence. Such a person will be liable:

• on summary conviction, to a fine not exceeding €1,904.61
• on conviction on indictment, to a fine not exceeding €63,486.90.

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