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Combined Section 15/16 Manual of the Standards Commission

Combined Section 15/16 Manual of the Standards Commission

2.2 Functions of the Standards Commission under the Ethics Acts and administrative actions taken by it in the performance of those functions

The principal ongoing functions of the Standards Commission under the Ethics Acts are to provide advice and guidelines on compliance with the Ethics Acts, to administer the disclosure of interests and tax clearance regimes and to investigate and report on possible contraventions of the legislation. These functions of the Standards Commission apply to Office Holders and to public servants and, in relation to tax compliance measures, to all Members and to appointees to senior office in public bodies. Apart from matters relating to tax clearance, the Committees on Members' Interests of both Houses have functions similar to those of the Standards Commission in relation to members of the Houses who are not office holders.

The ongoing functions of the Standards Commission under the Ethics Acts, therefore, are as follows:

A: to receive, consider and retain Statements of Interests furnished to it under the Ethics Acts.
B: to administer the tax clearance regimes for Members and appointees to senior office;
C: to publish Codes of Conduct provided for in Section 10 of the 2001 Act
D: to provide advice and guidelines on compliance with the Ethics Acts;
E: to receive complaints and to investigate and report on possible contraventions of the legislation;
F: to consult with and be consulted with on the operation of the Ethics Acts; and
G: to prepare an annual report to the Minister for Finance on its activities during the preceding year and to prepare any such other reports for the Minister as it considers appropriate

A Statements of Interests

The Standards Commission is required to receive, consider and retain all Statements of Interests which are furnished to it in accordance with the provisions of the Ethics Acts.

The Standards Commission writes to each public body annually advising of the requirement on designated directors and occupiers of designated positions in the body to furnish an annual Statement of Interest.

The forms for use by Office Holders (in disclosing their Additional Interests), special advisers, designated directors and occupiers of designated positions in public bodies for disclosing their interests are issued by the Department of Finance and are also available on the Department of Finance website (http://www.finance.gov.ie). A link to these forms can also be found in the forms section of the website of the Standards Commission (under "Disclosing Interests").

There is no statutory requirement on an Attorney General who is not a Member, special advisers, designated directors and occupiers of designated positions in the public service to furnish an annual Statement of Interests unless the person concerned has an interest to disclose i.e. an interest which has the potential to influence that person in the performance of his or her duties. However, the Standards Commission recommends, in such circumstances, that a 'Nil' statement rather than no statement should be furnished as evidence that the person has considered his / her requirements under the Acts. An abbreviated form is available for the purpose of a 'Nil' disclosure statement by such persons.

A sample 'Nil' statement (for designated directors) is contained at Appendix 2 of this manual. Nil statements of interests are also available on the websites of the Department of Finance and of the Standards Commission.

Where a Nil Statement or a Statement of Interests form is received by the Standards Commission and contains a minor error (e.g. wrong registration period) the person furnishing the statement is notified of the error and is invited to amend his/her statement.

All statements are acknowledged by the Standards Commission on receipt. The contents of such statements are not published or disclosed except in specific circumstances provided for under section 35 of the Ethics Acts (see part 2.3 below). The Statements are retained on a physical file for the statutory period of fifteen years. Copies of any correspondence in relation to the statements are retained on the physical file and are also held on an electronic database.

In relation to the Statements of Registrable Interests of Members (including Office Holders) the forms for disclosure are devised by the Clerks of Dáil Éireann and Seanad Éireann respectively, following consultation with the relevant Committee on Members Interests of Dáil Éireann or Seanad Éireann, as appropriate, and with the Standards Commission. This consultation process is provided for under the Ethics Acts and normally takes place towards the end of each calendar year.

The Statements of Interests forms are then issued by the Standards Commission to each Member in early January together with the Donation Statements and Certificates of Monetary Donations which are required to be completed by Members in accordance with the provisions of the Electoral Acts (see Part 3). The completed forms, which contain details of the Members' own registrable interests only, are returned to the Standards Commission and acknowledged on receipt.

When all forms have been received, the Standards Commission forwards them to the Clerk of Dáil Éireann and the Clerk of Seanad Éireann, as appropriate. Each Clerk then prepares a Register of Members' Interests. The Registers are published in Iris Oifigiúil and are also available on the website of the Houses of the Oireachtas (www.oireachtas.gov.ie.)

Responsibility for publishing information contained in the Registers or for providing access to the public to inspect the Registers is a matter for the Clerk of Dáil Éireann or Seanad Éireann as appropriate. Copies of the Registers are also given to the Standards Commission. The Standards Commission does not provide access to the public to inspect the Registers nor does it disclose any information contained on the Registers.

B Tax Compliance

The Standards Commission writes annually to public bodies reminding them of the tax clearance provisions for appointees to senior office. A form for notifying the Standards Commission of any such appointments is provided. The Public Appointments Service and the Top-Level Appointments Committee (TLAC) also advise appointees who fall within their remit of their obligations under the Acts and notify the Standards Commission of such appointments.

The Standards Commission writes to persons who it is aware will be required to furnish a Tax Clearance Certificate. The letter issues as soon as possible following a person's election or appointment and advises the person of his / her obligations with regard to tax compliance under the Ethics Acts. A Statutory Declaration form is included with the letter. Although application forms for tax clearance are issued by the Office of the Collector General, the Standards Commission also includes an application form with its letter.

The Statutory Declaration forms issued by the Standards Commission are specific to each category of person i.e. Members, Attorney General etc.. All Statutory Declaration forms issued in relation to tax clearance are available on the website of the Standards Commission. A sample of the Statutory Declaration which issues to members of the Houses of the Oireachtas is contained at Appendix 3 of this manual.

Statutory Declarations and Tax Clearance Certificates / Application Statements are acknowledged on receipt. A physical file is kept in respect of each person from whom such documentation has been received. Copies of correspondence with or regarding the person concerned are kept on the physical file and on an electronic database.

Members and appointees to senior office have nine months in which to furnish their completed Statutory Declaration and Tax Clearance Certificate or Application Statement to the Standards Commission. The Statutory Declaration, however, must have been completed within one month either side of the date of appointment, election or nomination. Failure to comply with the deadline for completing the Statutory Declaration or the deadline for furnishing the required documentation to the Standards Commission is a contravention of the Ethics Acts. The Ethics Acts provide that any such contravention will be investigated and reported on by the Standards Commission and that the requirement to furnish the documentation continues.

Where a contravention concerns a Member, the report will be submitted to the relevant Committee on Members' Interests who will cause it to be laid before the House. If the Member has still not complied in the year to which the next annual report of the Standards Commission following the non-compliance relates, the Standards Commission will specify the non-compliance in its annual report. The Standards Commission will also notify the relevant Committee on Members' Interests in writing. Where a Member subsequently complies, the Standards Commission will notify the relevant Committee in writing. The Committee will then cause a copy of the notification to be laid before the House. Where a notification to refuse a Tax Clearance Certificate is issued by the Collector General in respect of a Member, the Standards Commission will report to the relevant Committee on Members' Interests and forward a copy of the notification to the Committee which, in turn, would cause a copy of the report and the notification to be laid before the relevant House.

Where a contravention concerns an Attorney General who is not a Member, the Standards Commission will forward the report to the Taoiseach who will cause it to be laid before both Houses. If an Attorney General has still not complied in the year to which the next annual report of the Standards Commission following the non-compliance relates, the Standards Commission will specify the non-compliance in its Annual Report. Where an Attorney General subsequently complies, the Standards Commission will notify the Taoiseach in writing and the latter will cause a copy of the notification to be laid before the House (the Act does not specify which House is being referred to).

Where a contravention concerns an appointee to senior office, the Standards Commission will furnish the report to the body concerned and will lay the report before both Houses of the Oireachtas. If the holder of senior office has not complied in the year to which the next annual report of the Standards Commission following the non-compliance relates, the Standards Commission will notify the head of the public body in writing. The Standards Commission will also notify the head of the public body when the person complies.

In practice the Standards Commission has exercised some discretion in relation to the carrying out of investigations into contraventions of the tax clearance provisions of the legislation, as generally, the contraventions which have occurred to date have been due to a lack of awareness of the statutory deadlines for compliance.

C. Codes of Conduct

The Standards Commission is responsible for the publication and distribution of Codes of Conduct. The Codes themselves were drawn up by other parties, following consultation with the Standards Commission. The Codes which have been published by the Standards Commission to date are as follows:

D. Guidelines and Advice

With the exception of Members who are not Office Holders, the Standards Commission is responsible under section 25 of the Ethics Acts, for publishing guidelines and providing advice on compliance with the Ethics Acts to persons covered by the provisions of the Acts. A person must act in accordance with guidelines and advice issued by the Standards Commission unless, by doing so, he or she would be contravening another provision of the Acts. Guidelines published by the Standards Commission are admissible in any proceedings of the Standards Commission or the Committees on Members Interests of Dáil and Seanad Éireann and in any proceedings before a court or a tribunal.

In effect the Standards Commission publishes guidelines to 2 categories of persons covered by the Ethics Acts:

Office Holders
Public Servants (including the Attorney General, Special Advisers, holders of Designated Directorships in the Public Service and Occupiers of Designated Positions in the Civil Service and the Public Service)

Guidelines and advice for Members who are not Office Holders are provided by the relevant Committees (Dáil or Seanad) on Members' Interests. The Standards Commission is required to consult with the Committees on Members' Interests before publishing its guidelines. The Committees on Members' Interests are also required to consult with the Standards Commission before publishing their guidelines.

The Standards Commission, following consultation with the Committees on Members' Interests of Dáil and Seanad Eireann, published Guidelines for Office Holders (3rd edition) in December 2002 and Guidelines for Public Servants (4th edition) in July 2006. These documents are available on the website of the Standards Commission www.sipo.gov.ie, and may be accessed without recourse to the FOI Acts. These guidelines remain in force until revoked by a subsequent edition.

The Standards Commission may also give specific advice, on request, to Office Holders and public servants covered by the provisions of the Ethics Acts, on the meaning or application of any provisions contained therein. Where a request for advice is received, the Standards Commission has 21 days to furnish the advice or to notify the person of its decision to decline to furnish advice on the matter. When a request for advice is made, the provisions of the Ethics Acts relating to the person who made the request shall not apply to that person until such time as the Standards Commission has furnished the advice, or notified the person of its decision to decline to furnish advice on the matter.

Routine enquiries (i.e. regarding registration periods and disclosure dates) are normally received by telephone or e-mail and are answered directly by the Standards Commission Secretariat. This type of enquiry is not normally regarded as advice given by the Standards Commission or recorded as such.

In accordance with section 21(10) of the 1995 Act, certain members of the staff of the Standards Commission Secretariat are delegated to provide advice. Where a telephone enquiry is considered to be in the nature of a request for advice within the meaning of the Ethics Acts, the request will be referred to a member of staff who has been delegated to provide advice. The request and advice given are recorded the client's physical file and on an electronic database. Where he / she considers it appropriate to do so, a member of the Secretariat may require a person making a telephone enquiry to put submit their request for advice in writing or by e-mail.

Written or e-mailed requests for advice are always replied to in writing within 21 days. The request and the advice provided are filed on the client's relevant physical file and on an electronic database.

Requests for advice and advice given are subject to the prohibition on the disclosure of information provided for in the Ethics Acts. This is described in greater detail in section 2.3 below.

The Standards Commission is also empowered to issue guidelines and provide advice to persons to whom section 4(1)(a) of the 2001 Act applies concerning the steps to be taken by such persons to ensure compliance by them with that section. To date, the Standards Commission has not issued guidelines in this regard.

The Standards Commission is also empowered to provide advice to Office Holders in relation to the application or non-application of the Code of Conduct for Office Holders or a code of conduct for directors or employees of public bodies or any other code of conduct or any guidelines to any particular case or circumstance affecting or relating to him or her or to any conduct or proposed conduct of him or her. The Standards Commission is required to give the advice requested within 21 days. Similar provisions allow the relevant Committee on Members' Interests to give advice to a Member about the provisions of the Codes of Conduct for Members of Dáil Éireann or Seanad Éireann.

E. Complaints and Investigations:

Section 22 of the 1995 Act allows certain categories of person to make complaints to 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 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.

The Ethics Acts provide that any person who makes a complaint in good faith to the Standards Commission and who reasonably believes that the complaint falls to be investigated under the Ethics Acts will be exempt from any action or disciplinary procedure arising from the complaint, the furnishing of information to the Standards Commission, a Committee, or an Inquiry Officer, or the performance of a function in relation to the complaint by the Standards Commission, a Committee or an Inquiry Officer. This immunity is not available to a person who knowingly makes a false, misleading, frivolous or vexatious complaint or who supplies information known to be false or misleading.

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 to it. Section 8, however, allows the Standards Commission, in certain circumstances, to restrict disclosure of the identity of a complainant.

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.

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

the Attorney General (if not a Member)
an Office Holder
a designated director of a public body
the occupier of a designated position of employment in a public body
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)
- 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 to the Standards Commission a complaint already received by it about a Member who is alleged to have contravened the disclosure provisions of the Ethics Acts or to have done a "specified act" (see below).

Section 4 Complaints

Any person can make a complaint to the Standards Commission where he or she considers that a "specified person" or a person who is a connected person may

have done a "specified act";
contravened a provision of the Ethics Acts or
contravened a provision of 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 considers 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).

The provisions regarding a specified act do not apply to private matters which are unrelated to the functions of office or position, or to an act or omission which results from incompetence or inefficiency.

Where the Standards Commission considers that a "section 4" complaint is not of sufficient gravity to warrant investigation by the Standards Commission, it will decide, at its discretion, either not to investigate or to refer the complaint, as follows, to another authority:

in the case of a member, to such committee of the House concerned as it considers appropriate;
in the case of a director or employee of a public body, to the head of that body;
in the case of a Ministerial special adviser, to the relevant Office Holder.

Appointment of an Inquiry Officer

Section 6 of the 2001 Act provides that the Standards Commission may appoint Inquiry Officers to conduct, under its individual authorisation, preliminary inquiries into complaints received. An Inquiry Officer has the power to:

procure the evidence of the complainant or of any other relevant person,
to put such evidence before the subject of the complaint,
to allow the person the subject of the complaint to make a statement,
to conduct interviews with the complainant and the person the subject of the complaint,
to request the production by a person of any relevant document in the possession or control of the person and
to report in writing to the Standards Commission.

The report of an Inquiry Officer would not contain any determinations or findings but could, if the Standards Commission asked for it, include an expression of the opinion of the Inquiry Officer as to whether prima facie evidence existed to sustain the complaint concerned.

There is no compulsion on either the complainant, the person the subject of the complaint or any other person to co-operate with an Inquiry Officer.

Power of Discovery

The Chairman of the Standards Commission may direct discovery on oath of any documents relevant to the Standards Commission. The rules relating to discovery proceedings in the High Court apply in such instances.

Any person who has, in their possession or control, a document or information which they know to be relevant to an investigation, or an intended investigation, by the Standards Commission must preserve that document or information until the investigation is completed. It is an offence not to do so.

Investigation by the Standards Commission

The Standards Commission is empowered to investigate and report on alleged contraventions of the Ethics Acts on the part of Office Holders, the Attorney General, Ministerial special advisers, and holders of directorships and occupiers of positions in public bodies. The Committees on Members' Interests of the Dáil and Seanad have powers of investigation in relation to members of the Houses of the Oireachtas who are not Office Holders.

The Standards Commission will carry out an investigation in circumstances where:

a complaint is made or referred to it under section 22 of the 1995 Act;
a complaint is made to it under section 4 of the 2001 Act;
it considers it appropriate to do so.

Investigation protocol is determined by the Standards Commission and incorporates provisions for privacy, the hearing of submissions and evidence, attendance, representation, examination of witnesses and the recordings of proceedings. Witnesses to an investigation hearing have the same privileges and immunities as in a court. A decision of the Standards Commission in relation to an investigation may be that of a majority of its members.

The procedure in relation to reporting by the Standards Commission following an investigation of a possible contravention of the Acts is provided for by section 24 of the 1995 Act.

Where, following investigation, a contravention of the Ethics Acts is not determined, the report will set out the basis on which the non-determination was made.

Where, following investigation, a contravention is determined, the report will set out the Standards Commission's findings and determinations and will include reference to:

the steps and timescale required to achieve compliance;
whether the contravention was accidental or deliberate;
whether the contravention was serious or minor;
whether the person acted in good faith.

The investigation report of the Standards Commission will be provided to:

the subject of the investigation
the person who made the complaint
the appropriate Committee on Members' Interests (if the investigation followed a complaint made, or referred, by that Committee),
in the case of an Office Holder, the appropriate Dáil or Seanad Committee on Members' Interest (the report will be laid before the House concerned if a contravention is determined)
in the case of a person occupying a designated directorship or designated position, the Minister for Finance or the relevant Minister of the subject (the report to be laid before each House if a serious contravention is determined)

If the Standards Commission is of the opinion, from an investigation, that the subject may have committed an offence relating to the performance of his/her functions, the Standards Commission will forward a report to the Director of Public Prosecutions, who in due course, will notify the Standards Commission of the outcome of his/her investigations. The notification of the Director of Public Prosecutions will be included in the Standards Commission's investigation report.

The Standards Commission has determined and adopted a Statement of Intended Procedures for the conduct of investigations under the Ethics Acts. The protocol, which contains a more detailed description of the requirements outlined above, is contained in Appendix 4 of this manual.

F. Consultation with other bodies under the Ethics Acts:

The Standards Commission must consult with the Committees on Members Interests before publishing guidelines for Office Holders or guidelines for Public Servants. It may also consult with the Committees on Members' Interests on the operation of the Ethics Acts generally and, in so far as it is appropriate, on the operation of the Electoral Acts. The main areas for consultation concern the provision of guidelines and advice and the preparation of forms for annual disclosure of interests and disclosure of political donations.

The Committees on Members' Interests are required to consult with the Standards Commission regarding the guidelines they publish to Members to assist compliance with the Ethics Acts.

The Clerk of each House is required to consult with the Standards Commission about the forms to be used for registration of interests by Members (see Statements of Interests above).

Section 15(4) of the 1995 Act provides that the Government shall draw up and publish guidelines to Office Holders on the steps to be taken where they, their spouse, their child or a child of their spouse, are offered or supplied with property or services free or below cost, the net benefit of which exceeds €650. The Government must consult with the Standards Commission on the publication of these guidelines and consider any submissions that the Standards Commission may have. Guidelines for Office Holders on this matter were published by the Government in 1996 and remain in force.

The Secretary General of the Government must notify the Standards Commission where property or services free or below cost with a benefit exceeding €650 are supplied to a Minister or Minister of State and inform the Standards Commission of the action taken.

An Office Holder who is not a Minister or Minister of State must notify the Standards Commission of any offer of supply of property or services free or below cost, where the benefit exceeds €650, and must make a refund to the supplier. If this is not practicable, the Office Holder must make a donation to be determined by the Standards Commission. Any Office Holder who is not a Minister or Minister of State and who is unsure as to whether the benefit concerned comes within the scope of the guidelines or whether the benefit exceeds the €650 threshold must consult with the Secretary General of the Government. Once the Secretary has made a determination and advised the Office Holder concerned, he or she must also notify the Standards Commission on the matter.

G. Annual and Special Reports:

The Standards Commission is required by the Ethics Acts to furnish a report on its activities to the Minister for Finance not later than six months after the end of each year. The Minister must, within two months of receipt, cause a copy of the report to be laid before each House of the Oireachtas. The current annual report, and previous annual reports, are available on the website of the Standards Commission. Hard copies are available on request from the Standards Commission Secretariat.

The Acts provide that the Standards Commission may prepare such other reports for the Minister as it considers appropriate which the Minister may, if he or she considers it appropriate, lay before the Houses of the Oireachtas. To date, the Standards Commission has not prepared any such reports.

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