Investigation Protocol

3. THE DECISION TO INVESTIGATE

3.1 Where a complaint is made or referred to the Commission under section 22 of the Ethics Act or made to the Commission under section 4 of the Standards Act, the Commission shall carry out an investigation. However, in regard to a complaint made under section 4 of the Standards Act, if the Commission forms the view that the subject matter of the complaint is not of sufficient gravity to warrant investigation by the Commission, the Commission has the discretion either not to investigate the complaint or to refer the complaint to the appropriate entity or person as set out in section 4(5) of the Standards Act. Furthermore, the Ethics Acts envisage that where a complaint is made under section 4 in relation to the doing of a "specified act", then, unless the complaint is made or referred to the Commission by the chairman of a Committee, the Commission should not carry out an investigation unless it is of the opinion, after considering the report of an inquiry officer, that there is sufficient evidence to establish a prima facie case: see section 23(1A) of the Ethics Act (inserted by section 7 of the Standards Act).

3.2 In every other case, the decision whether or not to carry out an investigation is one for the Commission to make, having regard to what it considers "appropriate". Where, however, the Commission is considering whether to carry out an investigation of a matter relating to a person who holds or held a designated directorship of, or occupies or occupied a designated position in, a public body which was not the subject of a complaint under section 22, it is obliged to consult with the relevant Minister of the Government and must only carry out the investigation if the additional requirements of section 23(2) are met.

3.3 In deciding whether or not to carry out an investigation, as in the discharge of all its functions under the Ethics Acts, the Commission acts independently. The provisions of section 21 of the Ethics Act provide that the Commission's functions under section 23 must be discharged by the Commission as a whole and cannot be discharged while there is any vacancy amongst its members. Equally, these functions cannot be delegated to any of the Commission's staff. Section 32(7) of the Ethics Act provides that a decision of the Commission in relation to an investigation by it under the Ethics Acts or any question arising in the course of such an investigation may be that of a majority of its members. It should be noted, however, that section 21(2I) of the Ethics Act (inserted by section 2 of the Standards Act) permits such functions of the Commission as it may determine to be performed in relation to such matter or matters as the Commission determines by the Commission consisting only of the chairperson.

3.4 In considering whether or not to carry out an investigation, the Commission will have regard to all the material before it. The nature of the material before the Commission to support the complaint will clearly be of primary importance in deciding whether an investigation is warranted. However, having regard to the broad discretion conferred upon the Commission by the terms of section 23, it is neither practicable nor appropriate to seek to set out an exhaustive list of all of the factors which the Commission may have regard to in making this decision.

3.5 It is important to emphasise that a decision by the Commission to carry out an investigation signifies only that it considers it appropriate to carry out an investigation in accordance with the Ethics Acts for the purpose of determining whether there has been a contravention of the provisions of either Act. It does not imply that the Commission has reached any view on the truth or otherwise of any complaint made to it.

3.6 Before deciding whether or not to carry out an investigation under the Ethics Acts, the Commission may communicate with the person who would be the subject of such investigation in relation to the subject-matter of such investigation. Such communication may be appropriate in order to obtain information or to clarify matters which may have a bearing on the decision whether or not to initiate an investigation. Whether or not there will be any such communication, and the form and contents of it, will be a matter to be determined by the Commission having regard to the particular circumstances of each specific case. Where such communication takes place, the Commission will have due regard to anything said by the person concerned in deciding whether or not to carry out an investigation.

3.7 A significant aspect of the Standards Act is that, in section 6, it permits the Commission to appoint "Inquiry Officers" for the purpose of assisting the Commission in the performance of its functions. Whenever so requested by the Commission, an Inquiry Officer shall carry out a preliminary inquiry into a complaint made under section 22 of the Ethics Act or section 4 of the Standards Act. In conducting that inquiry, the Inquiry Officer may seek a statement from and/or interview the complainant and/or the person against whom the complaint has been made. The Inquiry Officer may also interview or seek a statement from any other person whose evidence would or might, in the opinion of the Inquiry Officer, be relevant to the inquiry. He or she may also request the production of any documents considered to be relevant to the inquiry. Following such an inquiry, the Officer is required to prepare a report of the results of the inquiry and to furnish that report, together with any statements and other documents furnished to the officer in the course of the inquiry. The report must not contain any "determination or findings" but, if the Commission so requests, it shall contain an expression of the opinion of the officer as to whether there is prima facie evidence to sustain the complaint.

3.8 The Commission's current view - which is, of course, subject to revision in the light of actual experience - is that the appointment of an inquiry officer is likely to be beneficial in most cases. Use of the section 6 procedure is likely to assist in ensuring that complaints are the subject of a full formal investigation by the Commission only where that is truly warranted and is also likely to assist in establishing the proper parameters for such an investigation, as well as avoiding the necessity of the Commission itself becoming involved in an information-gathering exercise. Accordingly, whenever a complaint is made to the Commission pursuant to section 22 of the Ethics Act or section 4 of the Standards Act the Commission will, as a preliminary matter, give consideration to whether an inquiry officer should be requested to carry out a preliminary inquiry under section 6. There may, of course, be cases where the carrying out of such a preliminary inquiry will not be necessary as, for instance, where the facts are clear and not the subject of any dispute.

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