Dr. Elaine Byrne:

I am grateful for the opportunity to give my views on the Bill. How Bills such as this are framed is important. People often regard them as something that is negative or a punishment for those in public life instead of framing them in a way that protects the majority of those in public life from perceptions of unorthodox behaviour.

I regard this in the same way as, and see parallels with, what happened recently in cycling and athletics, whereby once an allegation has been made and there are not adequate protection measures, everybody is tarred with the same brush. In this sense, the general scheme of the Bill is very welcome and should be framed in a way that reflects on public life more positively. The general scheme is 76 pages long. For people contemplating entering public life, it can be very daunting to see all the requirements with which they must comply.

My particular focus is on the register of liabilities. Under head 5(3)(c) there is a reference to declarable interests which specifies that any liability in excess of €50,000 should be on a register of liabilities. I would ask why the figure is so high compared to that which applies in other jurisdictions, where the limit is much lower. I would ask why the register is private rather than public and why private homes are not included on it. In Ireland, members of the National Treasury Management Agency, NTMA, who are assigned to work for the National Asset Management Agency, NAMA, are already legislatively required to be on the register of liabilities. They are the only public figures who are on a register of liabilities. Since 2009, the Standards in Public Office Commission, SIPO, has recommended that a public representative "who has significant liabilities to, for example, a financial institution, could be materially influenced in the course of performing their duties where such duties involve dealing with that financial institution".

Often, the focus, when we are discussing registers is on the assets public representatives have and not on their liabilities. People are as influenced, in terms of conflicts of interest, by their liabilities as by their assets. According to the current register of interests, at least a quarter of our Deputies and Ministers have significant holdings in holiday homes, rental properties or second properties. In the lifetime of this Government, in a reflection of the general population, a Minister and a Minister of State have experienced significant financial difficulties. This has raised questions about why the public did not know the extent of those Members’ liabilities. Australia, Finland, New Zealand, Poland, Spain and Canada require politicians to publicly disclose any debts they may have, including outstanding loans, debts or mortgages. The international best practice note provided for the documentation relating to the general scheme of the Bill does not focus on the models in Finland, Poland or Spain. In Canada, all assets and liabilities of a public figure and his or her family members which exceed $10,000 must be disclosed. In Ireland, the proposed limit is €50,000. In Canada, the Office of the Conflict of Interest and Ethics Commissioner maintains a public register of publicly declarable information. A couple of years ago, I looked up the details of the former Minister for Finance, James Flaherty, who disclosed that he had two mortgages, that he had a line of credit and that he was a guarantor in a mortgage with a particular bank. His register of interests also outlined his spouse’s liabilities, assets, investments, activities and sources of income. Under the system proposed for Ireland, this information would not be reported. Where a register of liabilities is to be introduced, I urge the committee to examine the Canadian experience, which has a searchable website database that is very comprehensible and all in one place. It is international best practice. Even interns in departments and public offices are included in the database.

The pretext of much of the general scheme is focused on the 22 tribunal recommendations. Much of the debate on ethics is no longer necessarily relevant, particularly in view of the fact that it is grounded in the context of what happened in political life in the 1980s or 1990s. Matters have moved on. Instead of looking to what happened in Ireland in the past, perhaps this and other proposed ethics legislation should be used to examine international best practice and what has happened in other jurisdictions. In the context of additional responsibilities relating to an office of the commissioner, perhaps we should examine how Ireland’s oversight agencies operate. In the UK after the economic crisis, there was an independent review - the De Grazia review - and audit of the capacity and operational ability of oversight agencies to prosecute ethical offences. Instead, we are examining ethical transgressions in the focus of one agency rather than considering where those ethical transgressions have occurred and where other agencies have similar functions which are duplicated or there is a lack of information sharing. Instead of considering one agency, perhaps there needs to be an audit and a review of oversight agencies in Ireland in general. In 2010, the Office of the Director of Corporate Enforcement gave a White Paper to the Department of Justice and Equality listing the problems it had doing its business. Instead of looking to the past, perhaps we need to examine an overview of how audit or oversight agencies need to focus in general.

There is no debate in Ireland on compensation for whistleblowers. The response in the US to the financial collapse and ethical misdemeanours was the Dodd-Frank Act, which established the US Office of the Whistleblower. The Securities and Exchange Commission is authorised by the US Congress to provide monetary awards ranging from 10% to 30% of the money collected in cases in which high-quality, original whistleblower information leads to a commission enforcement action of more than $1 million in sanctions. This week, Greg Medcraft, chairman of the Australian Securities and Investments Commission, has also proposed compensation to whistleblowers who risk their careers to expose company conduct. While paying whistleblowers may be a very difficult concept for many people to get their head around, we must ask what savings the State would have made had an Anglo Irish Bank employee blown the whistle about lending practices and auditing standards in the bank in the mid 2000s or if the Anglo tapes had come to light before the bank guarantee.

The general scheme is very welcome. SIPO and other organisations have been calling for it for years. The debate has moved on and we also need to focus on other areas of ethics. In many ways Ireland, whether through lobbying or whistleblowing, has some of the best governance architecture in the world, while in other areas we fall down, particularly regarding how it is prosecuted. SIPO and the Ombudsman will discuss it further.