Annual Report 2007

Proposed amendments to the Ethics Acts

In its Annual Reports for 2005 and 2006, the Standards Commission set out its suggested amendments to the ethics and electoral legislation. In addition, it wrote to the Minister for Finance setting out the amendments to the Ethics Acts which it considered necessary. A direct substantive response has yet to be received from the Minister for Finance. However, there have been some indications that some of the Standards Commission's proposed amendments may be taken in the context of the Ethics in Public Office (Amendment) Bill 2007.

The Ethics in Public Office (Amendment) Bill 2007 was published in April 2007. It was subsequently passed by Seanad Éireann in July 2007. The Bill, as passed by Seanad Éireann, addresses issues relating to gifts to office holders and members of the Oireachtas and raises the thresholds for disclosure of registrable interests. In its 2006 Annual Report, the Standards Commission regretted that the amendments to the Ethics Acts which it had previously recommended had not been adopted. It requested that urgent consideration be given to its suggested amendments and, in view of the complexity of the Ethics Acts generally, to the drafting of a consolidation Bill which would be more user-friendly.

At the time of writing, the Amendment Bill had yet to be considered by Dáil Éireann. However, the Minister for Finance indicated in Dáil Éireann on 31 January 2008 that he intended to bring in amendments to the Bill, along the lines of some of the proposals made by the Standards Commission. In a written answer to a parliamentary question on 26 February 2008 he referred specifically to technical amendments regarding statutory declarations and "nil" statements of interests. However, he stated that he did not propose to amend the definition of the term "specified act" used in the legislation, or to legislate for a complaint concerning failure to abide by certain defined ethical standards. He said that the existing definition of "specified act" aims to strike a fair balance, and that there were already codes of conduct to guide the ethical behaviour of Oireachtas members, office holders and civil servants in their day-to-day business and that these codes can be taken into account by the Standards Commission in an investigation of an alleged breach of the legislation.

He also stated that he had no plans to amend the law to enable the Standards Commission to appoint an inquiry officer without having received a complaint. He stated that it is reasonable that a complaint to the Standards Commission should be required to commence the inquiry process, which, in itself, can carry serious consequences for the person who is to be the subject of it.

The Standards Commission welcomes the indication of the acceptance of some of its proposed amendments, but regrets that the proposals concerning the "specified act" provision and the appointment of an Inquiry Officer in the absence of a complaint have not been accepted. These proposals were made by the Standards Commission in the light of its experience of operating the Standards in Public Office Act 2001. The intention of that Act was to allow for the investigation by the Standards Commission of unethical behaviour by office holders, public servants, etc. In its 2006 Annual Report, the Standards Commission noted that many complainants have found it difficult to frame a valid complaint in light of the complexity of the provisions regarding a "specified act". The relatively low number of complaints received by the Standards Commission may well be due, at least in part, to this difficulty.

The Standards Commission has the power to investigate a possible contravention of the Ethics Acts in the absence of a complaint. It should be noted, however, that the only method of investigation available to the Standards Commission is by way of a public hearing. In the only such investigation conducted under the Ethics Acts into an alleged contravention by an office holder, the person concerned – the then Minister of State, Ned O’Keeffe - resigned once the decision was made to initiate an investigation. Because of the implications of an investigation for an office holder, for example, the Standards Commission has been extremely reluctant to take such a step.

The appointment of an Inquiry Officer, on the other hand, should involve no such adverse consequences. The amendment sought by the Standards Commission – the power to appoint an Inquiry Officer in the absence of a complaint – is one which the Standards Commission continues to believe should be seriously considered. It would give effect to the intention of the legislation which is to allow the Standards Commission to consider effectively, and if necessary investigate, matters which may be of serious public importance and may obviate the mneed to trigger the "nuclear option", namely a full blown public hearing which could be disproportionate in certain circumstances.

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