Annual Report 2008

Proposed amendments to the Ethics Acts

In its last three Annual Reports, the Standards Commission set out its suggested amendments to the ethics legislation. In addition, it wrote to the Minister for Finance setting out the amendments to the Ethics Acts which it considered necessary. There have been 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 2007 Bill).

The 2007 Bill 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 expressed regret 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.

The Standards Commission's 2007 Annual Report noted that 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 but 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 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. At the time of writing, the 2007 Bill had yet to be considered by Dáil Éireann and there have been no developments in relation to either of these proposals.

During 2008, the Standards Commission wrote to the Minister for Finance proposing two further amendments to the ethics legislation. It suggested a revision of the definition of 'senior office' in the Standards in Public Office Act 2001 to exclude temporary, acting or locum positions where the term of such a position is intended to be less than three months. The 2001 Act provides that persons appointed to 'senior office' are required to furnish a statutory declaration and either a tax clearance certificate or an application statement within 9 months of their appointment. The definition encompasses persons who are appointed either to designated positions of employment or designated directorships where the remuneration is not less than that of a Deputy Secretary in the Civil Service (currently €177,547 per annum).

This has given rise to an issue in relation to appointments of short duration. It is often the case that a hospital doctor may move from one locum position to another in order to gain experience in the hope of ultimately obtaining a permanent position as a consultant. On each occasion that the person is appointed to a locum position, he or she has to furnish the required evidence of compliance within the statutory deadlines. This may give rise to a person having to comply with these obligations on a significant number of occasions within a relatively short period of time. The fact that a tax clearance certificate must have been issued within nine months either side of the date of appointment may mean that a single tax clearance certificate may meet the obligations arising from a number of appointments to senior office within a nine month period. However, it is likely that a separate statutory declaration would have to be made in respect of each appointment. Were a person to be appointed to a series of three or four week locum positions over a nine month period, that person would be required to make a statutory declaration up to nine times during that period. The Standards Commission considers that the strict application of these provisions in such circumstances places an undue administrative burden on such appointees. In view of the likely revision of the deadlines for the making of statutory declarations to three months either side of the date of appointment, the Standards Commission proposed that temporary, acting or locum positions should be excluded from the definition of 'senior office' where the term of such a position is intended to be less than three months. The Minister for Finance indicated that he would have the proposal examined by officials of his Department.

The Standards Commission also proposed to the Minister for Finance that a quorum of not less than three members (including in all cases, the Chairman) be provided for the hearing of an investigation under the Ethics Acts. At present, the Ethics Acts require that all members of the Standards Commission be present for investigations. In the case of a complex and/or lengthy investigation, this would involve attendance for a significant period of time on the part of all six members of the Standards Commission. Some members have other substantial duties to perform outside their role as Commissioners. The Standards Commission considers that the present requirement for all Commission members to attend at an investigation should be reconsidered. The number of Commissioners would be determined by the Standards Commission in light of the particular circumstances of the investigation to be heard. The Minister for Finance indicated that he would have the proposal examined by officials of his Department.

The Standards Commission reported in its Annual Report for 2003 that it had recommended revision of the timescale for the taking of proceedings concerning possible offences regarding the making of false statutory declarations in the context of providing evidence of compliance with taxation legislation. The existing provision was that proceedings must have been taken within 6 months of the offence being committed. The Civil Law (Miscellaneous Provisions) Act 2008 revised the Statutory Declarations Act 1938 to provide that summary proceedings in relation to an offence under that Act may be commenced at any time within 12 months from the date on which the offence was committed or any time within 6 months from the date on which the evidence that, in the opinion of the person by whom such proceedings are brought, is sufficient to justify the bringing of such proceedings, comes to such person's knowledge, whichever is the later, but no proceedings shall be commenced later than three years from the date on which the offence concerned was committed.

The Act also raised the penalty for the offence of making a false or misleading statutory declaration, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both. The Standards Commission welcomes these amendments.

In its Annual Reports for 2005 and 2006, the Standards Commission noted that the Minister for Finance had not initiated the appropriate motion in the Houses of the Oireachtas to designate the Chairpersons of Oireachtas Committees as office holders for the purposes of the Ethics Acts, thereby making them subject to the Ethics Acts in respect of those positions. In the Annual Report for 2007, the Standards Commission stated that it was understood that the Minister had been consulting with the Committee Chairpersons in relation to this proposal. The Secretary General (PSMD) of the Department of Finance subsequently informed the Standards Commission that the then Tánaiste and Minister for Finance, Brian Cowen TD, having consulted the Chairpersons and having considered the circumstances, had decided not to move the resolutions to designate chairpersons as office holders. The Standards Commission regrets this decision.

In its 2006 Annual Report, the Standards Commission recommended that where a public body is being set up, consideration should be given by the Minister for Finance to the introduction of Regulations which, if he considers it to be in the public interest to do so, would prescribe directorships and/or positions of employment within the body for the purposes of the Ethics Acts with effect from the date of the body's establishment. In its 2006 Annual Report, the Standards Commission stated that it understood that this proposal, which would require the co-operation of each Government Department establishing a new body, was being given active consideration. At the time of writing, regulations have not been made on foot of the establishment of new public bodies. However, it is understood that this proposal is still being considered. The Standards Commission considers that this approach is of increased relevance given the programme of rationalisation of state agencies currently being undertaken and given the importance of ensuring that persons who are currently subject to the provisions of the Ethics Acts should not have those obligations removed from them for technical reasons.

Back to contents