Annual Report 2005

Scope of the Ethics Acts

The Standard Commission welcomes the introduction in 2005 of two sets of regulations which were signed by the Minister for Finance under the 1995 Act. These regulations are the Ethics in Public Office (Designated Positions in Public Bodies) (Amendment) Regulations 2005 (S.I. No. 673 of 2005), which prescribe designated positions in Civil Service Departments and Offices and the Ethics in Public Office (Prescribed Public Bodies, Designated Directorships of and Positions in Public Bodies) Regulations 2005 (S.I. No. 672 of 2005), which prescribe public bodies, designated directorships and designated positions in organisations in the wider public service. The regulations, which came into effect on 1 January 2006, amend and update previous regulations made in 2004. The new regulations increase the number of prescribed bodies in the civil and public service which are within the scope of the Ethics Acts from almost 400 to around 470. The Standards Commission welcomes the commitment of the Department of Finance to keep the regulations up to date.

In its Annual Report for 2004, the Standards Commission noted that only certain posts in the 35 City and County Enterprise Boards, mainly the Chief Executive Officers, had been prescribed as designated positions for the purposes of the Ethics Acts and that members of those Boards had not been prescribed as designated directors and accordingly were not covered by the legislation. The new regulations now prescribe membership of those boards as designated directorships; this is another welcome development.

Another very significant extension of the Ethics Acts is the inclusion of the Health Service Executive in the Regulations. Along with six hospital boards established by the Minister for Health (Beaumont Hospital, Tallaght Hospital, the Dublin Dental Hospital, Leopardstown Park Hospital, Saint James's Hospital and Saint Luke's Hospital), a large number of persons involved in the health sector will now be subject to the provisions of the legislation. The six hospitals mentioned have been included as they fall within the definition of a public body within the meaning of the Ethics Acts as they were established by enactment. However, a number of public voluntary hospitals such as St. Vincent's Hospital, the Mater Misericordiae Hospital and Mercy University Hospital, are not included in the regulations as they do not fall within the definition of a public body. Under the Ethics Acts, it is open to the Minister for Finance to prescribe as a public body for the purposes of the legislation any other body, organisation or group financed wholly or partly out of funds provided by the Oireachtas if, in the opinion of the Minister, such a body ought, in the public interest and having regard to the provisions and spirit of the Act, to be so prescribed. This would, in turn, allow the Minister to prescribe designated directorships and designated positions in those bodies in order that the disclosure provisions of the Ethics Acts apply consistently across the publicly-funded health sector.

The 1995 Act provides that the Minister may prescribe directorships and positions of employment in public bodies for the purposes of the Ethics Acts if he considers that it is necessary in the public interest to do so in order to ensure, in a case in which, in the opinion of the Minister, a conflict could arise between an interest held by a director or an employee and the public interest in the performance of his or her functions, that the function will not be performed without the disclosure of the interest.

While the number of public bodies within the remit of the Ethics Acts has been expanded significantly in the last two years, there remains a number of publicly-funded organisations whose directors or employees are not subject to the disclosure requirements of the legislation. The Standards Commission has received indications that there has been some resistance on the part of government departments and bodies to prescribe the members of advisory boards as designated directors for the purposes of the Ethics Acts on the basis that they are not directors. The definition of "director" in the Ethics Acts refers to a director within the meaning of the Companies Acts, 1963 to 1990, but also includes, in the case of a public body that is not a company "a person who is a member of it or a member of any board or other body that controls, manages or administers it". As it is possible to envisage that a conflict of interest may arise for a member of such an advisory board in the performance of his or her functions, due consideration must be given to the question of whether it is in the public interest that such a conflict of interest should not be disclosed in accordance with the provisions of the legislation.

The Standards Commission also notes that the remit of the Ethics Acts has not as yet been extended to cover the north/south implementation bodies established by the Irish and British Governments to implement policies agreed by ministers in the North/South Ministerial Council. These bodies are the Foyle, Carlingford and Irish Lights Commission (to be comprised of the Lights Agency and the Loughs Agency but in which only the Loughs Agency is operational), InterTradeIreland, The North/South Language Body (comprised of the Ulster-Scots Agency and Foras na Gaeilge), Safefood: Food Safety Promotion Board and Waterways Ireland. In addition a plc, Tourism Ireland, was also established to market the island of Ireland internationally. Two of the bodies, the Loughs Agency and Foras na Gaeilge have taken over functions which were previously performed by two bodies, the Foyle Fisheries Commission and Bord na Gaeilge respectively, which were within the remit of the Ethics Acts. The Standards Commission is of the view that consideration should be given to including the above bodies within the scope of the Ethics Acts insofar as their activities within the State are concerned.

The Standards Commission also wishes to stress the necessity for public bodies, where directorships and positions of employment have been prescribed as designated directorships and designated positions, to ensure that persons who have obligations under the Ethics Acts in relation to disclosure of interests or to the provision of evidence of compliance with taxation legislation are notified of their responsibilities in good time to allow for compliance. It is important to note that primary responsibility for discharging those responsibilities rests with the individuals concerned. However, the Standards Commission emphasises that it is crucial that all prescribed public bodies should take seriously the obligations attaching to designated directors and employees under the Ethics Acts. It therefore recommends that public bodies include relevant briefing as part of induction training and that they should have structured follow-up contact, at least once a year, with designated directors and employees, to remind them of the steps which are required to be taken to ensure compliance with the legislation. In addition to the general information material which it supplies on a regular basis, the Standards Commission is available to assist in this process and to provide direct guidance and advice on any issue relating to the provisions of the Ethics Acts as they may apply to individual designated directors and employees.

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