Investigation Protocol

1. INTRODUCTION

1.1 The Standards in Public Office Commission ("the Commission") was established by section 21 of the Ethics in Public Office Act 1995 ("the Ethics Act") as amended by section 2 of the Standards in Public Office Act 2001 ("the Standards Act") for the purpose of discharging the functions conferred on it by both Acts.  (The Ethics in Public Office Act 1995 was extensively amended by the Standards in Public Office Act 2001. Unless otherwise indicated, references in this document to a provision or provisions of the earlier Act are to those provisions as amended by the later Act.)  In accordance with section 29(3) of the Standards Act, these Acts will be referred to in this document as "the Ethics Acts". By virtue of section 21(2) of the Ethics Act as amended by section 2 of the Standards Act, the Commission consists of the following persons:

• a chairperson who shall be a judge or a former judge of the Supreme Court or the High Court,
• the Comptroller and Auditor General,
• the Ombudsman,
• the Clerk of Dáil Éireann,
• the Clerk of Seanad Éireann, and
• a person who is appointed by the Government following resolution passed by each House approving the proposed appointment, and who is a former member of one of the Houses and is not a representative in the European Parliament.

1.2 The Commission's functions include the formulation of guidelines to assist persons in complying with the requirements of the Ethics Acts and the provision of advice to certain persons in relation to the provisions of those Acts. The Commission also has certain functions under Part 15 of the Local Government Act 2001 ("the Local Government Act") and the Electoral Acts 1997 to 2009 ("the Electoral Acts").

1.3 Section 22 of the Ethics Act provides for the making of complaints to the Commission relating to suspected contraventions of the provisions of Part II, III or IV of the Ethics Act or the doing of a specified act (as defined in section 2(2) of the Ethics Act, as inserted by Schedule 1 of the Standards Act, see footnote 6 in Appendix 1). Section 4 of the Standards Act provides for the making of complaints to the Commission where a specified person (as defined in section 4(6)(a) of the Standards Act) has carried out a specified act or has contravened a provision of the Ethics Act or a provision of the Electoral Acts.

1.4 Section 180 (2) of the Local Government Act provides that the Ethics Acts shall apply in relation to a local authority, subject to the provisions of that section, including inter alia, the powers of investigation and report conferred on the Commission. Accordingly, under section 174 (8) of the Local Government Act, a complaint in relation to a member or employee of a local authority may fall to be investigated by the Commission where the complaint is one made to the Commission by the appropriate person or persons in that local authority to whom the matter of an alleged contravention of Part 15 of the Local Government Act by that member or employee has been brought to their attention by the Ethics Registrar of that local authority.  A person may complain directly to the Commission about an alleged contravention of Part 15 of the Local Government Act. However, the Commission is of the view that all local avenues should be exhausted before a complaint is made to it, and that accordingly in the first instance, the local authority’s ethics registrar should be made aware of any alleged contravention. Under section 174(7) of the Local Government Act, where the ethics registrar becomes aware of a possible contravention, it is his or her duty to bring the matter to the attention of either the manager for and/or the Cathaoirleach of the local authority, who shall consider what action should be taken.

1.5 Section 23 of the Ethics Act provides for the investigation of such complaints by the Commission and also confers on the Commission the power to carry out such an investigation on its own initiative. Further and more detailed provision for such investigations is made elsewhere in the Ethics Act, particularly in section 32. Section 6 of the Standards Act empowers the Commission to authorise inquiry officers, if it so decides, to assist it in carrying out an investigation.

1.6 While, in general, the Commission's functions in relation to members of the Houses of the Oireachtas are confined to "office holders" or, in the case of complaints under Section 4 of the Standards Act, "specified persons", section 22(5) of the Ethics Act, as amended, provides that complaints in relation to members of the Oireachtas may fall to be investigated by the Commission where the complaint is one made to the Commission by the chairman of the relevant Committee on Members’ Interests itself or where, in the case of a third party complaint, the complaint is referred to the Commission by the chairman of the Committee concerned.

1.7 Section 32(6) of the Ethics Act, so far as it is relevant to the Commission, provides that "The procedure of ... the Commission in relation to an investigation by it under this Act shall, subject to the provisions of this Act, be such as shall be determined by ... the Commission." and then proceeds to set out certain specified matters for which provision is required to be made by the Commission.

1.8 The purpose of this document is to state the procedures which the Commission proposes to follow in carrying out investigations under the Ethics Acts. This statement of procedures is intended to reflect the mandatory provisions of the Ethics Acts but it also sets out the approach of the Commission to issues likely to arise which are not provided for, or not provided for in detail, in the Ethics Acts. The Commission emphasises that its functions are inquisitorial rather than adversarial in nature. Furthermore, the Commission has no coercive or punitive power. However, the Commission appreciates that the outcome of investigations carried out by it under the Ethics Acts may have significant implications for those concerned. The procedures set out in this document are intended to ensure that such investigations are conducted in accordance with fair procedures and so as to ensure a fair result.

1.9 It is not, however, possible to anticipate every issue which may arise in relation to investigations under the Ethics Acts or to provide, in advance, a detailed blueprint of the Commission's procedures in every eventuality. Therefore, it may be necessary to supplement or modify these procedures in the particular circumstances of individual investigations and the Commission reserves the right to so do, subject of course to the provisions of the Ethics Acts. It may also be necessary to revise the procedures described in this statement in the light of the Commission's experience of the actual operation of the Ethics Acts.

1.10 The Commission is committed to exercising its investigative powers under the Ethics Acts fairly and thoroughly and as expeditiously as possible, consistent with these over-riding imperatives.

1.11 This document is not intended to be an exhaustive statement of the provisions of the Ethics Acts so far as they relate to investigations and should be read in conjunction with both Acts. Obviously, in the event of there being any conflict between any part of this document and any provision of the Ethics Acts, the latter will prevail.

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