Oireachtas Joint and Select Committees
Thursday, 6 April 2017
Select Committee on Finance, Public Expenditure and Reform, and Taoiseach
Public Sector Standards Bill 2015: Committee Stage
I ask members to turn off their mobile phones. We are considering the Public Sector Standards Bill 2015, which was referred to the select committee by an order of the Dáil of 5 July 2016. I welcome the Minister, Deputy Donohoe, and his officials. There are 89 amendments for consideration but, by arrangement with the committee, we must finish at 1 p.m. I refer members to the circulated list of amendments that have been grouped for the purpose of debate.
Before we begin, I wish to point out that we only received these amendments late on Tuesday evening and that there are quite a number of them. Given everything else that happens in the Oireachtas on Wednesdays, we have not had much time to consider them properly. I wish to signal that we may submit further amendments on a number of issues on Report Stage. The e-mail containing these amendments arrived just after 5 p.m. on Tuesday.
I take Deputy Calleary's point that it is open to any Deputy on Report Stage to table amendments. We shared all of our amendments with the Bills Office last Thursday in advance of the deadline for this session. However, I apologise if members feel that they have not had enough time to consider them. If any Deputy wishes to amend the Bill on Report Stage, we will consider anything put forward, particularly as this Bill is reasonably central to how public life could be perceived in future. We will take any issue that colleagues wish to raise now on board. If we can devise ideas to improve the Bill on Report Stage, we will do so. If we cannot, I will engage with Deputies on any change that they propose to make.
In view of the Bill's contents and how it covers Members of the Oireachtas, will the Minister give us background information when he is going through the various sections? The Bill dates from 2015, but its Second Stage was ordered for and read on 20 January 2016.
This section relates to the Short Title of the Bill. It lays out how the Bill is to be referred to and the period within which the Bill will be enacted.
It states that it will come into operation within six months from the passing of the Bill or on an earlier day which the Minister may appoint by order.
Section 2 is a defining section. It sets out the various definitions in place regarding phrases, concepts and terminology that apply throughout the Bill. The key point is that it refers to the definition of "actual knowledge", "benefit", "commercial price" and "gift". It also sets out all the officials and bodies to which the Bill is subject.
I am sorry for intervening at this stage but there are more than 80 amendments and I am conscious of the time. My understanding of the Chairman's earlier intervention is that sections 26 and 27 may be pertinent with regard to Members of the Oireachtas. Rather than explaining all of the sections at this stage, could we move to deal with the amendments, extrapolate their meaning and dispense with them as we go along? Obviously, I will be guided by the Chairman.
Because of what I consider to be the importance of the Bill, I do not believe we should rush it. Opposition members did not submit amendments to the Bill and in the course of this discussion with the Minister and his officials we may well find areas of agreement but also areas of disagreement that might need to be addressed by way of amendments. I suggest we do that. I understand we have to go through each of the sections.
I move amendment No. 1:
In page 9, line 26, after “1997” to insert the following:
“or, as the case may be, section 2(1) of the Local Elections (Disclosure of Donations and Expenditure) Act 1999”.
Amendment No. 1, which I have tabled at the request of the Department of Housing, Planning, Community and Local Government, is to ensure that the definition of "donation" in section 2 of the Bill is fully comprehensive. In terms of where it originated, we have many different items of legislation - electoral Acts and local authority Acts - in this area and we are looking to come up with a single definition of "donation" in this Bill. Section 2(1) currently provides that donations shall be construed in accordance with section 22 of the Act of 1997. Section 22 of the Electoral Act of 1997 provides that "donation" means any contribution given for political purposes to a political party, a Member of either House of the Oireachtas, a representative in the European Parliament or a third party or a candidate at a Dáil, Seanad or European election. However, this does not cover a donation to a member of a local authority. This amendment is being proposed to ensure that if one is a member of a local authority, one is subject to the force of this Bill in the same way as if one is a Member of the Dáil or any other parliamentary body.
I am proposing amendment No. 2 to explain that the requirement for the existence of a public service pension scheme relates to both a subsidiary and a company in section 6(1)(k). This is a technical amendment to ensure clarity around this provision.
Amendments Nos. 3 and 4 are technical amendments to sections 6(3) and 6(6) to ensure consistency regarding the reference to committee of the Oireachtas throughout the Bill.
Amendment No. 5 relates to section 7 of the Bill. It is a technical amendment I am proposing for clarification purposes. This amendment reiterates the source of income concept, which is provided for in the first line of section 7(2).
Amendment No. 6 is a technical amendment. I am proposing it on the advice of the Attorney General's office to ensure clarity and because the existing text is somewhat colloquial.
Amendment No. 7 is a minor clarification provided to section 7 to ensure a new subsection in order that a political group of the European Parliament and a political party are defined for the purposes of section 7(11).
Amendment No. 8 is a minor text amendment to close the bracket after "1997" in section 9(2).
Amendments Nos. 9 and 10 are being proposed on the advice of the Attorney General to ensure, as is appropriate, that the saver in section 11(2) should cover not just section 11(1) but the other provisions of that section as well.
I am proposing amendment No. 12 to ensure that the prohibition on the use of confidential information in section 14 is comprehensive in its application. This amendment has been included at the request of the Standards in Public Office Commission and will ensure that confidential information is not used improperly to further the interests of any person and not just a connected person.
The insertion of the word "than" in amendment No. 13 gives section 16(4) its proper meaning. This is correcting a typographical error.
Amendment No. 16 refers to closing a bracket.
I am proposing a technical amendment to ensure the words "in which" in amendment No. 17 to section 23(4) for clarification purposes.
I am proposing the minor amendment No. 18 as there is no definition of "officeholder" in the Bill. To be consistent with section 25(1), therefore, the reference in subsection (1)(b) should be to the Minister of the Government rather than the officeholder.
A similar approach is taken in amendment No. 19.
Amendment No. 23 in section 27(1) is a minor textual change that inserts the word "the". The text now refers to the "Office of the Commissioner".
Amendment No. 24 is a technical change so that the Deputy Public Sector Standards Commissioner is referred to in the Bill as the Deputy Commissioner.
I am proposing amendment No. 31 at the request of the Standards in Public Office Commission in order that the new standards commissioner will be allowed to directly lay his or her annual report before the Oireachtas.
Amendment No. 34 in section 32 provides for the deletion of lines 31 and 32. That was determined by the Office of the Attorney General as this piece of legal text did not seem to serve any purpose.
Amendments Nos. 35 and 36 in section 33 are minor text and technical changes to fully reflect the terms "complainant" and "respondent".
Amendments Nos. 42 and 43 in section 39 change the word "finds" to "find".
Amendment No. 86 in section 62 is a minor text change in order to give the text a proper meaning.
Amendment No. 87 in section 64 is a minor change to provide the correct title as the Minister for Housing, Planning and Local Government on foot of a change in the Department's name in 2016.
The reason we have agreed the grouping of these amendments in this way with the committee is because all of them refer to either changing a word or the drafting of the Bill. There is little in them that prompts any substantive change in the Bill.
One return. The Bill provides that if any public official believes he or she has received a donation, for example, or performed an act of some kind that is inconsistent with the implementation of this legislation, he or she must make what is called an ad hoc declaration. He or she has to inform the relevant body within a reasonable period of that happening. At the moment, it is done on a retrospective basis. That is an important change in this Bill.
It will mean that if a Member were to receive a donation or gift that was not consistent with the implementation of this legislation, he or she would have to declare it within a reasonable period of that happening. Members will not be able to declare such occurrences at the end of the year.
We are leaving it very vague. Mine and the Minister's ideas of reasonable could be very different things. We are giving an outside body the power to define what is reasonable. Surely we should tighten it up or give guidelines.
I would be happy to deal with a proposal in that regard on Report Stage. In essence, this Bill is looking to ensure that we have a standards commissioner with a higher level of power and oversight than is currently the case.
I accept and agree with that. It is fine for Members of the Oireachtas. We are generally full-time public representatives. Members of local authorities are not. They are trying to keep down a job in many cases. They do not have the kind of backup we have. Has there been engagement about this provision with local authority members or their representative bodies?
I do not know about engagement with representative bodies. This legislation went through the drafting process of a policy paper and has been available in the Oireachtas and in the public domain for almost a year. Up to this point, short of Deputy Calleary raising the issue, we have not received any communication from anybody who is looking to change it in respect of its application for local authority members.
They are not looking for changes until they see where the Minister is going with it. Let us be practical about legislation as well. We are leaving it vague with the phrase "reasonable period" and we are putting a more detailed reporting requirement on people who may not have the backup to do that and certainly are not aware that this is coming at them. I want to signal my concerns over "reasonable" and allowing a non-elected body to come up with definitions around that.
This is an unelected body. We are going to have a single person within the standards in public office body, who will be a standards commissioner. That office is unelected for good reason, which the Deputy is accepting. I accept that. We will ask that person to put together a code of practice. It is required in a different section of the Bill that he or she consult with stakeholders on what that code of practice is going to be. In many cases, we are not changing any particular definition. We are looking to have a single framework within which all of this can be dealt with. That is the purpose of the Bill.
There is a section of the Bill that requires the standards commissioner to go through a period of consultation with relevant stakeholders. Maybe that is a way in which this matter could be dealt with. If the Deputy can identify a way in which we can improve the Bill in this area, I am very open to considering it. In light of what the Deputy has said, I am willing to consider this on Report Stage if I can. There is a specific section in the Bill that requires the standards commissioner to consult with stakeholders. Those stakeholders could of course include local authority bodies.
The standards commissioner, as I understand it, will be able to appoint - a board will be appointed, if I am not mistaken. May I seek a clarification on that? It would be necessary in my view to ensure that there is a representative on that board who is either a former Oireachtas Member or former councillor, somebody within that new arrangement who would speak to the dynamic that exists for public representatives.
It is actually the other way around. I can offer some explanation as to why the Deputy is saying that. At the moment, we have a board within the Standards in Public Office Commission. If a particular matter needs to be considered or action taken, the board has to be assembled. We are now vesting the power in this area in a single individual who is referred to in this Bill either as the standards commissioner, and who can also have a deputy. We are looking to move it in the other direction.
Where the Deputy might be getting that idea from, though, is that we have an outside appointments board through which that person can give consideration to whether somebody should be taking up a role. Maybe in respect of that board the Deputy's point could be considered. In terms of this Bill, we are looking to move it in the opposite direction in that we would have a single person and a deputy whose role it would be to oversee the implementation of this legislation.
For clarification, may I ask the Minister if the Standards in Public Office Commission will remain? There will be a person there known as the standards commissioner, who will be responsible for the implementation of the legislation. Is that right?
That is mostly right, Chairman. The commission itself will be dissolved to deal with this issue of having to assemble a meeting to deal with a particular matter. Then the latter part of what the Chairman said is correct. We would then have a single individual, who will have a deputy, and they will be vested with the powers to implement this Bill.
What concerns me is that we are giving this person a considerable amount of power. He or she would have to be extremely well briefed on the role of councillors, for example, to take up Deputy Calleary's point, who are not familiar with completing all of these forms or the consequences of signing off on them, as we are here in this House. One is presented with all sorts of forms to complete and sign and sometimes, in my opinion, Members do not understand the consequences of those signatures - not that they are doing anything wrong. It is a pretty onerous task to go through all of that paperwork.
We have not consulted with the councillors to get their view on it. I think that consultation is also necessary in respect of what Members of the Parliament think about all of those forms. My understanding of the Standards in Public Office Commission, and I engage with it, is that some Members do not fully understand its purpose. It is not there to catch us out but to help us. I would be very concerned about the forms, and the lack of consultation in respect of all of that.
I put my hands up. I did not engage with this Bill properly but why are we replacing a commission with one individual? Where did that come out of? Is there international best practice? In fairness to the Standards in Public Office Commission, it comprises a group of people with expertise and practical knowledge. Surely a commission, comprising a group of people with expertise and experience, would not be less effective than one person.
On the first question, the reason for that is that we are more compliant with what we believe to be international best practice the area. We have looked at work that has been done elsewhere, in particular work has been done by the OECD and the World Bank and they have looked at what best practice is in other jurisdictions. We have based our thinking in this area on what they have said that best practice is. That is why we are looking to vest it in a single individual. To help the committee, I can supply some of the information regarding what best practice looks like in other jurisdictions in advance of Report Stage.
On the Chairman's point about the role of councillors, we have consulted with the Department of Housing, Planning, Community and Local Government. It is very supportive of what we are doing in seeking to implement a report which includes many of the recommendations of the Mahon tribunal. To deal directly with the Chairman's point about the number of forms that can be generated, most of the time our colleagues in the Standards in Public Office Commission try to help colleagues to make sure forms are filled in and all their duties are discharged accurately. There is a section later on in this Bill that requires a period of consultation with key stakeholders on the development of a code of practice. That is the way an issue like that could be dealt with.
It is consulting with the officials and the Minister. To date, and this may change as a result of this debate, neither I nor my Department has been approached directly by a local authority body expressing concern about the implementation of this.
In the spirit of being constructive, can I suggest that the Minister writes to the local authority representative associations to draw their attention to this Bill and the new requirements it places on its members and ask for feedback?
If they do not give feedback at least they had the opportunity. We are struggling to get people to serve in local government and this is another requirement on people they need to be aware of. I would not wait for them to talk to the Minister. He should talk to them.
I would be very happy to do that. In many cases, what we are looking to do is to align with legislation that is already there but that being said, we are vesting new powers in the standards commissioner, as we have discussed. There will be a change in how we expect public officials and elected members to perform. In that spirit, I will take up Deputy Calleary's suggestion and write to the local authority representative bodies to notify them of this. If they have any further concerns, we will take them on board.
It would be fair to clarify that no one is opposed to reasonable standards. It is just that we are all aware how long it takes to complete all these forms, maintain all the paperwork and then have it ready for the Houses of the Oireachtas should it be inspected. Many councillors are sent from pillar to post with all of these strategic policy committees, district meetings and so on. The Minister is putting a huge burden on them. That is my only concern.
I am crystal clear about where everyone is coming from. In that spirit, the Chairman and the members are looking to make sure that we end up with a Bill which can be properly implemented. My Department will write to the local authority representative bodies and ask them for any further input on the Bill. We will complete that before we move to Report Stage and I will notify the committee of any input that I receive from local authority members. I take the Chairman's point.
I am happy to agree to the amendment on the basis of the commitments given by the Minister but I am going to come back to this on Report Stage because I fear we are putting a big reporting requirement on people who genuinely may not have the backup to support that. I know they have to do this already for their own local authority but now they are being required to provide a lot more information here. In advance of Report Stage, we all need to engage with the Bill. I am happy to support the amendment.
I contend that we are going the opposite way in that we are making it clearer to local authority members what it is they have to do. As I have said, I am happy to help with any concerns that colleagues might have and notify the local authority representative bodies of the Bill and what we are doing. If they have any concerns about it, we will revert back to the committee.
If I put the question on the amendment and it is agreed to and members have an unease or concern about the amendment, it sends a signal that we have agreed to that particular amendment when, in fact, there are concerns about it.
I am happy to support the amendment but I think this has been landed on us. The Bill was introduced in January 2016 when our minds may have been elsewhere. There is probably a lot more work to be done in terms of informing members. As we go through it, I have many queries about section 7 and I now have queries about declarable interests. It places a whole new sheaf of reporting requirements to which I do not object but in terms of the day-to-day practicalities, let us make this Bill effective. I am happy to support the amendment but ahead of Report Stage, there needs to be engagement not just with local authority members but Members of the House around provisions of the Bill.
I am happy to do that but this Bill has been published since January 2016. I take the Deputy's point that a hell of a lot has been happening in the intervening period but this is a Bill that has been in the public domain for quite a while. On Report Stage, if colleagues wish to change or notify me of changes they would like to make, we can engage in such changes then.
Okay, but I am trying to assist the Chairman, because the substantive issues contained within the Bill in regard to declarable interests are in section 7. If a further process is necessary to examine the content of section 7, one must be mindful of what the Chairman said if section 7 is passed today.
One could withdraw the amendments or support these amendments. That is the question. If the amendments are to be agreed as we go along, then those amendments will be presented to the House. If the Deputy is unhappy with the amendments, now is the time to state it so that the Minister can either be asked to withdraw them. We cannot have it two ways. That is my concern.
To be frank about it, I am quite happy with the amendments to section 7. However, that still does not deal with the questions that have been posed by Deputy Dara Calleary and the Chairman on section 7. I am happy to agree to the amendments to section 7, but if there are content issues in section 7, the question is, do we pass section 7? If section 7 is passed, can one still submit amendments on Report Stage?
Section 4 provides a definition of what a public official is. It lays out the different bodies of which a public official is a member. It also lists the Attorney General and Comptroller and Auditor General. It lays out in subsection (2) the role of a director, the role of an employee, and then latter sections, particularly subsection (3), make it clear who it does not apply to.
They are excluded and that has been the norm up to this point. The legislation we have had on electoral issues, lobbying, donations and so on has only dealt with public officials. It has not dealt with judges.
Section 5 defines what a public official is. It splits it into two different categories. A "Category A" official is broadly an individual who holds a very senior post. "Category B" senior officials are people who are, for example, principal officers or hold posts of county registrar or city sheriff. It also deals with "Category C", which is below it.
I have a question about chief executives of local authorities. I am glad to see that is included in this Bill. Will chief executives of local authorities have to make a declaration for the purposes of the Bill?
On subsection (3), the Master of the High Court is defined as a "Category B" public official, yet the Judiciary is excluded. The Master of the High Court is a member of the Judiciary. Is there not a contradiction there?
No. My understanding is that the Master of the High Court does not perform some of the judicial roles that a normal member of the Judiciary would, but I am happy to check that and come back to the Deputy about it.
I move amendment No. 2:
In page 16, line 31, after “which” to insert “subsidiary or company”.
This section defines what a public body is under subsection (1). All the different definitions of what a public body is can be seen. Each body in the Civil Service is laid out. It then goes on to deal with issues of oversight and how that is going to be organised within the Bill.
I move amendment No. 3:
In page 17, to delete lines 9 and 10 and substitute the following:“(d) such Committee (if any) of either House, or Joint Committee (if any) of the Houses as, in the Minister’s opinion, ought to be consulted,”.
I move amendment No. 4:
In page 17, to delete lines 31 and 32 and substitute the following:“(b) such Committee (if any) of either House, or Joint Committee (if any) of the Houses as, in the Minister’s opinion, ought to be consulted,”.
I ask the Minister to walk us through section 7 in detail and to outline the differences that the introduction of section 7 will make as opposed to what the reporting requirements are at the moment. I am concerned about the vagueness of the language in section 7(2). I want the Minister to also look at section 7(6) and subsection (11) and how it reflects subsection (6). This is actually the heart of the Bill with regard to new requirements. I would like the Minister to talk us through it.
I do not know if my question is ridiculous, but I will pose it anyway. I am thinking of the county councillor, for example, who may be a solicitor, a commissioner for oaths or an auctioneer. Where a local development plan is being made, and if that person has a declarable interest in selling or ownership of that land, is there anything in this new section that strengthens the declaration or the necessity to declare an interest? Is it as is? I am trying to understand the ad hocdeclaration which the Minister has described. I am not fully au faitwith it yet. I think it is pertinent to section 7. If it is not, the Minister can inform me.
I will kick off by broadly answering the question put to me by Deputy Calleary about the role of section 7. Section 7 details all the interests that the Bill sees as being declarable interests. The purpose of this is to communicate to any public official who would be subject to this Bill what interests he or she needs to declare. I will deal with it subsection by subsection. Subsection (1) defines the seven forms of interest that are declarable interests for the purposes of this legislation. They are laid out in subsection (1)(a) through to subsection (1)(g). They are an income, a contract, an office, an asset, gifts and travel accommodation, property that could be supplied or lent and interests of a residual nature. Subsection (2) gets into sources of income. It lays out sources of income that must be seen as declarable interests.
It lays out where they exceed €2,600 per year in an income that is separate to the income that the individual could be claiming through his or her public job. It lays out the source of any income regarding dealing in or developing landing, including if it is a connected person or company or a body corporate involved in dealing in or developing land. That probably answers Deputy Sherlock's question. It then deals with the source of any income from a position as a consultant, adviser or lobbyist. Subsection (3)-----
I apologise to the Chairman. I do not think anybody has properly engaged with this Bill. Members of the Houses of the Oireachtas are generally full time. However, this Bill asks that members of local authorities declare their salary levels. A teacher's salary level is usually available. If a member is working in private industry, must his or her salary be declared? If a member is running a business, must the profits of that business be declared? I am very concerned by what we are doing here.
At the moment, one has to declare one's place of work. If one is an accountant, one would list the practice in which one works. If one has to declare the amount of income one receives from the employment, that is a different situation.
Section 1(1) of the Second Schedule to the Ethics in Public Office Act 1995 states:
A remunerated trade, profession, employment, vocation or other occupation of the person concerned (other than that of office holder or member or an occupation to which Part IV applies) at any time during the appropriate period, in relation to that person, specified in section 5 (1) or 20 the remuneration from which to the person concerned during that period exceeded £2,000.
That is currently the law.
One does not have to declare the amount of one's salary. If one's salary exceeds that threshold, one has to state the employment in respect of which that salary is received. One does not have to state the amount of the income.
It is arguable that the wording is unclear. The Bill states: "Each of the interests specified in this section is a declarable interest for the purposes of this Act, and the following forms of interest are dealt with by the following subsections-----".
I seek guidance on this issue. Does any part of the Bill explicitly say that one has to declare the source of the income as opposed to "the income"?
I ask members to look at subsection (2) which states: "Each of the following sources of income (as distinct from the amount of the income)". That deals with the matter. I was speaking at cross-purposes to Deputy Calleary earlier. I apologise for that. I thought he was referring to the source of income.
Section 7(2)(b) deals with the source of any income related to dealing in or developing land. The phrase "developing land" is quite vague. If one is a Member of this House or a local authority and one has a farm from which one reclaims land, is that developing land? There is a vagueness of language which can be used to hide from the provisions of the legislation. Where is the definition of "developing"? Is it part of the Bill? I know where this wants to get to but there is a vagueness which is hindering it.
The terminology used in regard to dealing with land has been used in previous Acts. To date, that terminology has worked. If the Deputy has any suggestions on how to improve the wording, I will consider them.
I am happy to take on board any views that the House has in this regard. I believe the phrase "developing land" is sufficiently specific. If we try to get too granular in terms of what a particular word might mean, we might end up excluding forms of activity that it is the intention of the House to capture. I earlier mentioned the concept of a code of conduct. We must allow a little latitude to the Standards in Public Office Commission to put together a code of conduct which will fulfil the intention of the Bill. I am happy to take on board the views of Members.
I am concerned that if we are not granular it will be interpreted in a way that could be very negative. The Minister is establishing a commissioner in this regard. That gives these people authority and power that we will not have a second bite at. If it is not granular, there could be an error. The Minister is correct that the Bill has been available to be read for 15 months but I would say that fewer than five people in either House are aware of this and there are five or six of us here.
In order to address the concerns of Deputies D'Arcy and Calleary, I can see if there is another definition of "dealing" or "developing" which we might be able to insert into the Act to deal with this issue. If such a definition is available, I will put that forward on Report Stage. If colleagues have any suggestions, I am happy to consider them. We need to be careful that the language does not become so specific that it narrows the ability of the Standards in Public Office Commission to do its work.
As long as that is clear, of course I am happy to do it.
I seek clarification on periodic and ad hocdisclosures. Under section 7 and its attendant subsections, the ad hocdisclosure applies. My understanding is that the ad hoc disclosure is made if and when a conflict of interest arises. It is generally more effective than periodic disclosure in identifying interests likely to give rise to a conflict as the nature of the private interests to be disclosed can be defined in more general terms. Consequently, it is also better at bringing such interests into the public arena. There is an obligation on any persons or entities subject to section 7 to make the declaration. Where is the composite investigative function? Is there a composite or opposing investigative function on the part of the Standards in Public Office Commission?
The commissioner would respond to that declaration and there would be an ability to appoint somebody to do the work or the commissioner could do it him or herself. Section 12 lays out what an ad hocdeclaration is and when it is required. With regard to Deputy Sherlock's point, the legislation defines a relevant matter as a resolution, motion or question. It lays out the fact that, for example, this could arise in the Oireachtas, a local authority or a committee. That is laid out in section 12.
I suggest that, separate from his engagement in the legislative process, the Minister write to every Deputy and Senator and include a copy of the Bill. I am not dictating but the Minister should be frank in stating this legislation has substantial provisions and requirements and that before Report Stage, all Members should engage on those requirements. Perhaps there is something to be said for the Minister's officials holding a briefing on the Bill in the AV room at some stage in the next couple of weeks to outline the practicalities for people. It is only as we tease things out that we see what is involved.
I have a query on section 7(6) and the clarification in section 7(11). If a Member, representing either his party or a committee of the House, or the Chairman of any committee is sent on a parliamentary trip, does he not have to make a declaration if the sum is over €600? Section 7(11) states:
The reference ... to travel, accommodation, refreshment or ancillary facilities ... shall be construed as a reference to the thing concerned being provided—... by the public official's employer, ... by an international organisation of states ... by an institution or body of the European Union, ... by the Inter-Parliamentary Union (or other such similar bodies ... ) ... to a member of either House of the Oireachtas and paid for wholly by the member's political party or by a political group of the European Parliament.
That seems to cover all the bases in terms of-----
That is the case. The subsection, as the Deputy has said, makes reference to travel, accommodation and refreshment provided in the course of performing a public official's functions. It does refer to what the Deputy has laid out.
The new declaration that will have to be made by Members of the Oireachtas, or anybody affected by the Bill, will have to include trips. The Chairman of any committee will undertake two or three trips per year. That will have to be included. Members sent to Brussels representing their parties at meetings will have to make a declaration if the sum is over the specified value.
The challenge concerns having many Acts that lay out various requirements for Members. Maybe a difficulty we are encountering here is that I need to make clearer where we are and where we are going. In advance of our meeting again, I will write to the committee, in particular, and lay out the current law, particularly on declarations, and how it will change after the implementation of this Bill. Would that be of help?
I move amendment No. 7:
In page 22, between lines 6 and 7, to insert the following:"(14) In subsection (11)(f)—"political group of the European Parliament" means a group formed in accordance with the rules of procedure of the European Parliament;
"political party" means a political party registered in the Register of Political Parties in accordance with section 25 of the Electoral Act 1992 as a party organised to contest—
(a) a Dáil election,
(b) a European election, or
(c) a local election,
(within the meaning, as respects each of the expressions set out in the preceding paragraphs, given by that Act) or all or any combination of such elections.".
Section 8 lays out what a private declarable interest is. It defines what an individual asset is and considers what a liability could be. It refers to an exemption in respect of a relative, except a spouse or child of the official, where the interest of that relative could be perceived to be inconsistent with the public official discharging his or her duties.
They are dealt with in section 8(1)(b), which refers to assets. It reads, "any individual asset of the public official concerned ... but excluding pensions, or an interest in the private home of the official or of the official’s spouse".
Section 7(9) deals with spouses and children.
It refers to any interest being an interest of the spouse or a child of the public official concerned and of which the public official has actual knowledge that the interest could reasonably be perceived to be connected with the performance of his or her functions. It is also dealt with in section 8(10), which states: "The reference in subsection (9)to an interest of a public official’s spouse or of a child of a public official shall be construed (in a case where the spouse or child is not himself or herself a public official) as a reference to an interest of the spouse or the child that, if the spouse or child, as the case may be, were a public official, would be a declarable interest." There is a double check in place there.
I move amendment No. 8:
In page 23, lines 34 and 35, to delete "European Parliament Elections Act 1997" and substitute "European Parliament Elections Act 1997)".
Section 9(1) provides that nothing in the Act will prevent a person who is otherwise eligible to be a candidate in an election for either House of the Oireachtas, a local authority, or the European Parliament for a constituency in the State from being such a candidate.
Section 10 provides for the standards of integrity required of every public official. The key part of that is section 10(1), which makes it clear that it is the duty of every public official to maintain proper standards of integrity and concern for the public interest and to use resources effectively.
I move amendment No. 9:
In page 24, line 16, after "(1)" to insert "and any subsequent provision of this section".
Section 11 prohibits a public official from seeking or extracting from any other person other than the official's employer any benefit, remuneration, fee, reward or other favour for anything done or not done by virtue of his or her employment. I have already spoken about the amendments. Amendments Nos. 9 and 10 propose an amendment on the advice of the Office of the Attorney General to ensure, as is appropriate, that the provision in section 11(2) should cover not just section 11(1) but other provisions of that section. What we are looking to do with these amendments is make clear that they cover everything in section 11.
I move amendment No. 11:
In page 25, between lines 36 and 37, to insert the following:"(4) Subsection (3)is in addition to, and does not derogate from, a provision of any other enactment requiring a public official to disclose an interest of a kind specified in that other enactment or to take, or refrain from taking, action similar to what a public
official must take, or refrain from taking, under that subsection.
(5) In particular, subsection (3)is in addition to, and does not derogate from, any provision specified in column (4) of the Schedule, at a particular reference number, of the Act of the Oireachtas mentioned in column (3) of the Scheduleat that reference
(6) Section 33(2)makes provision, in a case where it is considered that a provision of an enactment referred to in subsection (4)or (5)has been contravened, for the making of a complaint in respect thereof.".
I will speak on amendments Nos. 11 and 88. Legislation establishing new bodies in the past has included provisions relating to the applications of the Ethics Act. As some of these provisions related to ad hocdisclosures at meetings more onerous than those set out in section 12, I am proposing an amendment on the advice of the Office of the Attorney General which will ensure that public officials concerned would be required to comply with the provisions in section 12 as well as the ad hocdisclosure provisions at meetings in the legislation referring to their own public body. This amendment will also allow the new standards commissioner to investigate a complaint made regarding a contravention of the ethics provisions contained in the existing Acts relating to public bodies as well as under the Bill. Much of this refers to the questions put to me by Deputy Sherlock earlier.
Section 13 provides for ad hocdeclarations by public officials and lays out procedures where a public official has actual knowledge that he or she is a connected person. It looks at whether they have a declarable interest or hold any office for which they do not get paid but which could be perceived as a conflict of interest and makes clear that in these cases, an ad hoc declaration must be made.
Section 15 deals with some of the issues we discussed earlier relating to land. This may be the space in which we deal with Deputy Calleary's concerns regarding how we define dealing or developing. Section 15 prohibits members of local authorities from acquiring or disposing of land or an interest in it or dealing in any professional capacity with land during their term of office and for two years afterwards in certain circumstances. The Bill lays out those particular circumstances. For example, these include if the land related to any function that was discharged in respect of the Planning and Development Act 2000 or if it refers to land that was subject to the passing of a resolution. Section 15(2) refers to the development plan, for example, if they own a piece of land that may have been impacted by the development plan. Section 15(3) introduces the concept of not being able to do that when they hold the office for a period of two years after the expiry of that term of office.
Section 15(2) refers to a development plan. If people had a piece of land that was the subject of a development plan and subject to a decision in respect of a variation of a development plan, which is captured in section 15(2)(ii), they would not be allowed to dispose of that land or indeed purchase it for a period of two years after the expiry of their term as a local authority member.
I do not believe it does but I can check and come back to the Deputy because it is pretty clear that the subsection refers to local authority members. I can revert to the Deputy but as the Bill is drafted, it just refers to local authority members.
I move amendment No. 14:
In page 30, between lines 32 and 33, to insert the following:“(9) The obligation under subsection (2) or (3) shall not apply in relation to the year following the year in which the person concerned ceases to be a Category A public official (or in relation to any subsequent year in which he or she continues to be no longer such an official).”.
I am proposing amendment No. 14 to clarify that the obligations regarding tax compliance contained in section 16 do not apply once the public official concerned is no longer a public official. This is essentially a technical amendment. I am proposing amendment No. 15 to allow the new standards commissioner to determine the format and means by which tax clearance certificates are furnished to him or her. If a person is currently a public official, he or she is required to furnish a tax compliance certificate. If he or she is no longer a public official, this is not required but he or she may still be subject to other parts of the Bill, such as in respect of land. Amendment No. 15 gives the standards commissioner the power to determine the format in which that information can be shared.
There are two ways in which this could be developed. First, it could be shared electronically, as opposed to by the exchange of the piece of paper, which is what happens at present. Second, we could allow the standards commissioner to get the information directly from the Revenue Commissioners. I am in favour of doing this but it would be a matter for the standards commissioner. At the moment, a person receives a tax clearance certificate and sends directly back to the standards commissioner. However, it may be more efficient to allow the commissioner to request the information directly from the Revenue Commissioners.
There may be times when a person needs to discreetly deal with the Revenue Commissioners to put his or her house in order and to ensure that he or she is tax compliant, so that he or she can then furnish a tax clearance certificate. I would have a problem with SIPO or the commissioner going direct to Revenue because a person may not be compliant at a given time, but not for nefarious reasons.
The amendment refers to both the format and means. The term "format" relates to doing it electronically, while that of "means" refers to the method of access. I can certainly consider that point. As the law is currently drafted, one has to either provide a tax clearance certificate or indicate to the Revenue Commissioners that one is getting one's affairs in order and is likely to be able to produce a certificate of tax compliance within a certain period. I am not proposing any amendment that might get in the way of the latter but I can reflect on the word "means" and on whether it might get in the way in the future. That is not my intention. It is particularly not my intention for people who are newly elected to the Oireachtas. It is entirely possible that a person could have a professional business outside public life and have a matter they are in the process of resolving with the Revenue Commissioners. If they then get elected to public life, we have to recognise their right to get their affairs in order, particularly if they transition to becoming a public official.
Section 17 sets out the requirement for tax compliance regarding proposed judicial appointments and certain other appointments. Subsection (1) provides that the Judicial Appointments Advisory Board will not recommend a person to the Minister unless that individual has furnished to the board both a tax clearance certificate or a declaration - not more than one month before the relevant date - to the effect that there is nothing of which he or she is aware that would prevent him or her from getting a tax clearance certificate.
We are only seeking to make this consistent with existing legislation in this area, namely, the Courts and Court Officers Act 1995. We are simply looking for tax clearance certificates here. My understanding is that there is no change from how things are at present in respect of the 18-month requirement but I will come back to the Deputy on that.
There is an opportunity to include judges in this by expanding the definition to apply all aspects of this legislation to it. The question will be asked as to why they are excluded. Tax clearance certificates are not just pieces of paper - there is a lot more to them. The question needs to be dealt with in the context of this legislation. The Minister spelled out in section 17(3), (a) to (f), that the board refers to a traditional appointments advisory board. Perhaps he will look at it again on Report Stage.
They are not included under the broader Ethics in Public Office Act because of their constitutional independence. If we were to go any further in this Bill in extending to judges the requirements to which a Member of the Oireachtas is subject it could be inconsistent with their status within the Constitution. We are looking to deal with this separately through the establishment of a judicial council. It is proposed that the legislation providing for the establishment of the council will also provide for the establishment of a judicial conduct committee, both to facilitate the investigation of allegations of judicial misconduct and to prepare guidelines concerning judicial conduct and ethics. Separate legislation is being drawn up for that purpose, which I believe is at an advanced stage of drafting.
I move amendment No. 15:
In page 33, between lines 24 and 25, to insert the following:"(7) Subsection (8)applies to the format in which, and the means whereby, all or any of the following are to be issued or furnished, namely—(a) any certificate or statement referred to in this section is to be issued by the Collector-General,(8) The format and means may be determined by the Commissioner and the format and means so determined, with respect to what is referred to in subsection (7)(b), shall be such as to ensure to the public officials or proposed appointees concerned the maximum convenience in complying with the relevant provision.
(b) any certificate, declaration or statement referred to in section 16, 17or 18is to be furnished to the Commissioner, the Judicial Appointments Advisory Board or a Minister of the Government,
and references in subsections (8)and (9)to the format and means shall be construed accordingly.
(9) If the format and means, with respect to what is referred to in subsection (7)(a)or (b), are the subject of a determination under subsection (8), then no other format or means, with respect to what is referred to in subsection (7)(a)or (b), as the case may be, shall be used for the purpose of issuing or furnishing the matter concerned.".
Perhaps I could offer some more perspective on the issue in light of our discussion on the format so that the committee is clear about what I mean. At present, SIPO recommends that an online system be developed to facilitate compliance with the tax clearance provisions of the Bill. As I stated earlier, this is by means of a hard copy. An online system would allow a category A public official to make his or her declaration to the commissioner using an electronic signature. In addition, such a system would allow for the tax clearance certificate to be provided by the Collector General directly to the commissioner rather than having it sent to the applicant who is then required to furnish it to the commissioner. This appears to the commission to be an unnecessary administrative procedure. That is how it is currently drafted. I will reflect on the committee's concern about the means of sharing and perhaps tighten that provision regarding the format.
This lays out the need to provide a declaration of interests. It refers to the different categories of officials that we referred to earlier and how they are to make their declarations. It instructs officials to be compliant with the Bill and lays out how.
Section 24 provides for the retention of statements and matters concerning legal or medical services. Subsection (1) provides that a statement of declarable interests or a statement of ad hocdisclosures will be retained by the relevant person who receives it for 15 years, and that it or a copy of it will be furnished to the commissioner whenever it is requested by the commissioner.
Subsection (2) provides that a statement of declarable interests, or an ad hocdisclosure, relating to legal or medical services, will specify only that legal services or medical services, were supplied to the person or to another person in respect of whom the first-mentioned person is required to furnish a statement or make a disclosure. The form of the statement will facilitate compliance with the foregoing provision.
It means that where somebody receives statements and matters concerning legal or medical services, the sections of the Bill will apply to it. In terms of legal services, that is quite clear where it is, for example, legal advice that might have a monetary value. It is important that it would be declarable or available to be declared. In relation to medical services, currently the 1995 Act brings medical services into this ambit.
I will reflect on what is included in relation to psychiatric or psychological services. It is unclear to me why, if somebody who receives a psychological service, it would be covered by the Bill. It is a fair point.
I will reflect on it. I can see clearly the legal piece. I note I am not currently being asked to change it but I will have a look at it. I will reflect on the reference here to psychiatric or psychological services. Even if it is anchored in other legislation, we think about these matters in different ways now to how we did a number of years ago. It is a fair point.
I move amendment No. 20:
In page 38, line 7, to delete all words from and including "(1) There" down to and including line 10 and substitute the following:"(1) There is established, by virtue of this section, an office which shall be known as—(a) Oifig an Choimisinéara um Chaighdéain san Earnáil Phoiblí, or(2) The holder of the office so established shall be known as—
(b) in the English language, the Office of the Public Sector Standards Commissioner.(a) An Coimisinéir um Chaighdéain san Earnáil Phoiblí, or
(b) in the English language, the Public Sector Standards Commissioner,
who shall perform the functions conferred on him or her by this Act, and who is referred to in this Act as "the Commissioner".".
Amendment No. 20 is a technical amendment to section 26 which provides for the full title of the commissioner and his or her office to be included in Irish and English. It fits in with the fuller description of the office which is now included in the Long Title of the Bill.
Amendment No. 21 is a technical-type amendment. Section 26 deals with the establishment and functions of the new standards commissioner. I am proposing this amendment to subsection (12) to ensure that all current functions of the Standards in Public Office Commission are comprehensively transferred to the new commissioner.
Subsections (1) and (2) of amendment No. 22 provide clarification, as the role of public sector standards commissioner cannot be held under certain circumstances. These amendments are supplementary provisions in relation to section 26. A similar provision was included in the Standards in Public Office Act 2001.
Subsections (3) to (6) of this amendment are proposed for inclusion, on the advice of the Attorney General's office, to deal with instances where complaints are received against the new commissioner or deputy commissioner. The new section will allow the Minister to appoint another person to perform the functions of the commissioner or deputy commissioner in these situations. It will also allow the Minister to appoint another person to perform the functions where the commissioner or deputy commissioner is either unable to perform the functions or the office is vacant.
In these proposals, I am seeking to deal with an issue that was touched on by Deputies earlier. We will now have a standards commissioner who will have a significant amount of power. We lay out procedures where, if an individual has a concern in relation to how those powers have been discharged, it is open to the Minister to make an appointment for somebody else to discharge those duties for a period of time.
The removal of a person from office is dealt with under section 26(5), which states:
A person appointed to be the Commissioner—(a) may at his or her own request be relieved of office by the President, and
(b) may be removed from office by the President but shall not be removed from office except for stated misbehaviour, incapacity or bankruptcy and then only following resolutions passed by each House calling for his or her removal.
I move amendment No. 21:
In page 39, to delete line 10 and substitute the following:“Commission by—
(a) the Act of 1997, and
(b) the Local Elections (Disclosure of Donations and Expenditure) Act 1999,
and paragraphs (a)and (b)shall not be construed as limiting the generality of section 64(1)as regards that provision operating to confer functions, under other enactments, on the Commissioner.”.
I move amendment No. 22:
In page 39, between lines 10 and 11, to insert the following:
“Supplemental provisions in relation to section 2627.(1) Where a person who holds the office of the Public Sector Standards Commissioner is—(a) nominated as a candidate for election to either House of the Oireachtas, the European Parliament or a local authority,he or she shall thereupon cease to hold the office of the Public Sector Standards Commissioner.
(b) nominated as a member of Seanad Éireann,
(c) deemed, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997, to be elected as a member of the European Parliament, or
(d) co-opted, under section 19 of the Local Government Act 2001, to fill a casual vacancy in the membership of a local authority,
(2) A person who is, for the time being—(a) entitled under the Standing Orders of either House of the Oireachtas to sit therein,shall, while so entitled or while such a member, be disqualified from holding the office of the Public Sector Standards Commissioner.
(b) a member of the European Parliament, or
(c) entitled under the standing orders of a local authority to sit as a member thereof,
(3) Any function of the Commissioner or the Deputy Commissioner may in a case—(a) in which functions under this Act fall to be performed in circumstances where—be performed by another person appointed for the purpose by the Minister after, if the Minister considers this to be appropriate, consultation with the Commissioner.(i) a complaint under subsection (1) of section 33 has been made that the Commissioner or the Deputy Commissioner has contravened a provision of this Act, or(b) in which other special circumstances arise,
(ii) a complaint under subsection (3) of section 33 has been made that the Commissioner or the Deputy Commissioner has done an act or made an omission referred to in that subsection, or
(4) Without prejudice to subsection (3), in a case in which the Commissioner or the Deputy Commissioner is temporarily unable to perform a function under this Act or the office of the Commissioner or the Deputy Commissioner is vacant, the function may be performed by another person appointed for the purpose by the Minister after, if the Minister considers this to be appropriate, consultation with the Commissioner.
(5) The terms and conditions upon which a person is appointed under subsection (3)or (4)shall be those that are specified by the Minister.
(6) The Minister shall secure that an appointment under subsection (3)or (4)continues in being no longer than is reasonably necessary to meet the circumstances that led to the appointment being made.”.
Section 29 makes provision for the issuing of advice by the commissioner. Subsection (1) provides for the issuing of advice by the commissioner to a person to whom the Act applies regarding steps that could be taken by the person to comply with the Act. Subsection (2) provides that when a request for advice is made, the relevant provision of this Act will not apply between the time the request is made and the time the commissioner gives or declines to give that advice. Subsection (3) provides that the commissioner may issue confidential advice and guidance where he or she considers it appropriate to do so. Subsection (4) provides that in any proceeding or investigation of a breach, regard will be given to whether a person complied with the advice furnished, but regard will only be had to the compliance with advice in respect of determining the sentence of the individual concerned. Subsection (5) provides that subsection (4) applies to advice or guidance confidentially under subsection (3), despite its confidential nature.
I will restate this in plain language. This goes to some of the questions put to me earlier regarding the application of the Act. If a public official has a question on how a provision of the Act is being implemented, the official can go to the commission and ask for advice if he or she has a concern. During the period when the official is receiving advice, the relevant provision of the Act will not apply to the official. This is to respect the fact that the official is receiving advice. Then, when the official gets that advice and an issue arises, the official will be required to bring his or her affairs into line with the Act.
I am glad this provision is in place and that it is unambiguous. The existing culture in respect of the Standards in Public Office Commission is such that one can go and speak to people in that office and get guidance. To see it clearly written into legislation is to be welcomed.
It is being put in for that reason. I strongly hold the view that the Standards in Public Office Commission has discharged and continues to discharge all the powers it has in the way that we would expect. However, the Bill provides that if a Member has a question, he or she can engage with the Commission and support and help will be provided in so far as it can be. In light of the change that is under way, we are seeking to put this on a statutory footing. Crucially, the idea is to make clear that for the period when a person is seeking advice on a particular section, that section will not apply.
There is freedom in place at the moment for Members to go to the Standards in Public Office Commission and seek advice and direction. This is being maintained. There is no issue with it. Is that correct?
That is correct. If anything, I hope it will be strengthened because we are putting it on a statutory footing. Moreover, I hope that officials subject to the Bill will then feel more able and willing to seek such advice. The hope is that it will be clear to them that if they are seeking particular advice and it turns out that an issue arises, they are not subject to the Act during the period they were looking for the advice.
Another matter arises. Representatives from the Standards in Public Office Commission come directly to Members. They have spoken in the audiovisual room and given advice generally on the Act and how people can be properly guided through the paperwork. This should be extended to everyone named in the Bill, including councillors. If others are to be included in the Bill, they should receive all appropriate supports initially while they are coming to understand the Act, the extent of the paperwork and their obligations. That is important. I know representatives from the Commission do it now. It is a question of reinforcing it.
If there are, I will deal with the Standards in Public Office Commission and the Ombudsman. If issues need to be dealt with relating to making this happen, we will deal with them. We are coming to the relevant section that relates to the code of conduct. I will ensure that as the legislation is being rolled out, everyone who is subject to the Act has an opportunity to understand it and raise any questions. We will do that.
I move amendment No. 25:
In page 40, between lines 17 and 18, to insert the following:“(2) Before drawing up a model code of conduct under subsection (1), the Commissioner shall consult with such persons (or representatives of them) as, in the Commissioner’s opinion, having had regard to the degree to which those persons will be directly affected by the code, ought to be consulted.”.
This relates to some matters we discussed earlier. I am proposing amendment No. 25 to ensure that the new standards commissioner will be required to consult relevant stakeholders before drafting the model code of conduct for the guidance of public officials with regard to compliance with the provisions of the Bill, as required under this section.
Questions were put to me earlier in respect of ensuring that people who could be affected by the implementation of this code would be aware of it and would have an opportunity to input or to have their views known. We are going to put that on a statutory footing.
Amendment No. 26 relates to section 30(2). The purpose is to allow public bodies the flexibility to draw up and issue codes of conduct which, while taking into account the model code that will be issued by the new standards commissioner, are specifically relevant to the particular public body concerned.
Officials will be covered by this Act. Certain officials might have a particular role that requires a particular code of conduct. The purpose of the Act is not to provide a code of conduct for every job in the public service. It is to provide a relevant robust footing to issues raised by the Mahon tribunal. It is then up to other bodies to make the necessary provisions. If other bodies need to draw up a code of conduct that takes account of the requirements, they will be able to do so.
Amendment No. 27 is next. It would not be practical for each Department to draw up its own separate code. It is sensible that there is an appointed body to draft such a code for Members and for members of the Government. The purpose of the amendment is to include a new subsection in section 30 that would make it explicit that sectoral codes would be drawn up based on the model code. Moreover, any public body not covered by these sectoral codes will draw up its own code. For example, we propose that my Department would draw up a code for civil servants, including special advisers. The Department of Housing, Planning, Community and Local Government would draw up the relevant code for local authorities and elected members of local authorities.
Amendment No. 28 provides for a technical change to the Bill to take account of the nature and status of Oireachtas committees. This is because it would not be appropriate for the new standards commissioner to give a direction to an Oireachtas committee. The relevant power has been removed by this amendment. Among other things, Article 15.10 of the Constitution provides that each House shall make its own rules and Standing Orders with the power to attach penalties for the infringements.
Amendment No. 29 deals with a technical issue. The provision is to ensure that a procedure is in place for the new standards commissioner and for public bodies to amend or revoke codes of conduct and to issue replacement codes of conduct.
Amendment No. 30 is another technical change to section 30 to ensure that the obligation to consult stakeholders also relates to where a new replacement code is drawn up by the new standards commissioner.
I move amendment No. 26:
In page 40, line 18, to delete all words from and including “Each” down to and including “and” in line 20 and substitute the following:“Each public body may, having had regard to the model code of conduct under subsection (1), draw up and issue one, or more than one, code of conduct in respect of its public officials”.
I move amendment No. 27:
In page 40, between lines 22 and 23, to insert the following:“(3) Subsection (3) shall be construed and have effect so that, in respect of each category of public official set out in this subsection, a code or codes of conduct referred to in subsection (3) shall be drawn up and issued by the following, namely
(a) every civil servant and special adviser - by the Minister;
(b) every member of the Government - by the Taoiseach;
(c) every member of either House who is not a member of Government – by whichever Committee of that House, or Joint Committee of the Houses, as that House or those Houses determine to be appropriate for the purpose; and
(d) every person who is employed by, or a member of, a local authority - by the Minister for Housing, Planning, Community and Local Government,
and, without prejudice to the application of the definitions in this Act of “public body” and “public official” otherwise to this section, references in this section to public body and public official shall, in the cases falling within this subsection, be construed in accordance with this subsection and references in this section to a public official’s employer shall, in any such case, be deemed to be references to, as appropriate, the Minister, the Taoiseach, the appropriate Committee of the House or Houses of the Oireachtas or the Minister for Housing, Planning, Community and Local Government.”.
I move amendment No. 28:
In page 40, to delete line 29 and substitute the following:“amended, and the public body shall consider any such recommendation,but, in relation to a code of conduct issued by a Committee referred to in subsection (3)(c), there shall not be exercised the power under paragraph (a).”.
I move amendment No. 29:
In page 41, to delete lines 10 to 14 and substitute the following:“(8) A code of conduct under this section may be amended or revoked by—(a) in the case of such a code under subsection (1), the Commissioner, and where such a code is revoked the Commissioner shall draw up and issue a replacement code under that subsection,
(b) in the case of such a code under subsection (3), the public body that issued it, and where such a code is revoked the public body may draw up and issue a replacement code under that subsection.”.
I move amendment No. 30:
In page 41, between lines 14 and 15, to insert the following:“(9) Subsection (2) applies to the exercise, by the Commissioner, of the power of amendment under subsection (10) or, if the Commissioner exercises the power of revocation under that subsection, the discharge by him or her of the duty under paragraph (a) of that subsection as it applies to the discharge by the Commissioner of the duty under Section 30, as amended, agreed to.
I move amendment No. 32:
In page 41, between lines 31 and 32, to insert the following:“CHAPTER 1Principal provision made by this Part and its relationship to Parts 5 and 6
32. (1) This Part provides—(a) in relation to certain contraventions of this Act, for offences in respect of those contraventions, andand the provision made by this Part extends to regulating the matter of whether a contravention that may constitute an offence is to be dealt with under Part 5 (Prosecution of Offences) or Part 6 (Civil Consequences of Contravention).
(b) in relation to contraventions generally of this Act, including those the subject of the offence provisions, or in relation to acts or omissions referred to in section 33(3), a procedure for the making of complaints, and the investigation and determination of those complaints,
(2) In relation to the investigation and determination of complaints, this Part includes—(a) provision for a division of functions between the Commissioner and the Deputy Commissioner, and
(b) provision that, in particular cases, the next particular stage of the procedures provided under this Part need not be proceeded to (or, in certain circumstances shall not be proceeded to) and enabling the Commissioner to deal with the matter by, amongst other things, issuing advice or guidance to the person concerned.”.
I propose amendment No. 32 on the advice of the Office of the Attorney General. This is a signposting or explanatory-type provision to aid the reader to understand Part 4 of the Bill, which relates to contraventions, and its relationship with Parts 5 and 6, which relate to the prosecution of offences and civil consequences of contravention.
Section 32(1)(a) relates to where a person retains for more than 14 days a gift the acceptance of which is prohibited by section 11(3). A person may not know the value of a gift and may, unknown to himself or herself, commit an offence by it being described at 14 days. It is a very short period.
What about somebody who knows it is wrong after 14 days - if, for example, he or she had been informed after that. A genuine error can occur there. To prescribe it bluntly is well and good until a commissioner is appointed who is more blunt than others. People who hold office of any nature have a lot to do and 14 days is a very short spell.
The value in question is €600. Most of us would have a fair sense of the value of a gift might be and I am sure that a couple of phone calls would let a person know what the value of the gift was, depending on its nature.
There was a sense that two weeks is a reasonable period for someone to reflect on a gift and decide to make a determination of the value. That is where the 14 days came from. If the Deputy feels there is a case for making that a little longer, I am open to considering it but I would think 14 days is a reasonable timeframe to decide the value of a gift.
When I served as a Minister of State, a lot of the gifts I received and graciously accepted would have ended up in the mantlepiece of the relevant Department and are probably still there gathering dust. In practice, their value is more nominal than monetary in nature.
-----and those who are conducting their business in a proper manner, which is the majority of people in public life. The overall Bill is to strike that balance between one and the other and, at the same time, not frighten people off, particularly those who are doing their business in the proper manner.
I will indeed reflect on it. I think it might be helpful to see this section in light of section 11, which lays out values and guidance in relation to a gift. It says a public official shall not accept a gift which exceeds the value of €600, except, I hasten to add, where the gift is unconnected with the performance of his or her functions. It lays out that a public official "shall not accept gifts from the same person, the value of which, in aggregate, exceed €600 over the period of a year". Section 11 (4) states, "Where a gift the value of which exceeds €600 is given to a public official, then, unless the gift is unconnected with the performance of the official’s functions, he or she shall, within 14 days [do the following]". I would see all of this in the light of the fact that we are talking about something that has to exceed €600 in value. I will examine the matter in order to discover if it is anchored in other legislation elsewhere whether a difficulty would arise if we were to change the period from 14 to 21 days.
I take the Deputy's point. It is worth being aware of the countervailing view that public officials should not accept gifts at all. Where this can become challenging is in the case of a person who is abroad performing Government business. Even though it is not a cultural norm or an expectation that if one is abroad representing the Government or the Oireachtas that one would give a gift to someone else, it is the case in many countries that a gift is given to the visitor. If someone is performing an official duty in Asia, for example, he or she will be given a gift by the person he or she is meeting. It is in recognition of this that the section is included.
I move amendment No. 33
In page 43, to delete line 5 and substitute the following:“(a) contravenes section 38(7)(a) or (b),”.
Both SIPO and the Department of Justice and Equality raised concerns with my Department that there might be some provisions in the Bill which are not appropriate for inclusion in the context of Chapter 3, which deals with investigations, and which could potentially cause problems for subsequent criminal prosecutions around compellability issues and the rules of evidence. As a result, I have tabled these amendments, which are all related, in order to deal with the issue.
These revisions operate on the basis that there will be no hearing or interviews under oath in the course of an investigation but that there will still be the possibility of an oral hearing before the commissioner. The distinction is that where a breach is such that a prosecution for an offence is anticipated, the breach can be processed, through the investigation procedure provided for in Chapter 3, to a prosecution without any hearing taking place. As no hearing would take place, there is no possibility of prejudicing a subsequent prosecution. If a breach is such that an administrative sanction only - rather than a prosecution - is anticipated, the commissioner can hold an oral hearing without the fear of any subsequent prosecution being tainted.
To express this in a different way, a fundamental rule in criminal law is that which relates to self-incrimination. This rules stipulates that an accused cannot be compelled to provide evidence of information against himself or herself which could then be used against him or her in a criminal prosecution. The only circumstances in which that could happen would be in respect of a criminal trial.
Let us say a suspicion is formed about a criminal offence being committed. The purpose of this change is to make sure that in the process of the commissioner investigating it, he or she does not ask for evidence to be published, particularly in public or on oath, which would then cause a difficulty in the subsequent criminal trial.
Exactly, it is a long-held principle that a person accused of a crime who ends up in criminal proceedings has rights. One of those rights is that one cannot previously have been required to share information that could be self-incriminating.
In what I hope would be a rare event of this happening, we are amending the section to ensure that the commissioner would not be required to do anything that subsequently might mean such a criminal investigation might be undermined.
I move amendment No. 37:
In page 43, after line 38, to insert the following:“(2) The reference in subsection (1) to a person’s having contravened this Act shall be deemed to include a reference to his or her having contravened a provision of any other enactment referred to in section 12(4) or (5) and subsequent references in this Part and Part 6 to a contravention of this Act shall, where the context admits, be construed as including references to a contravention of such a provision.
(3) Without prejudice to subsections (1) and (2), a person (also referred to in this Act as ‘‘the complainant’’) who considers that a public official (also referred to in this Act as the “respondent”) has done an act or made an omission falling within subsection (4) and that the matter is one of significant public importance may make a complaint in writing in relation to the matter to the Commissioner.
(4) The act or omission referred to in subsection (3) is one that is, or the circumstances of which are, such as to be inconsistent with—(a) the proper performance by the public official of the functions of the office or position by reference to which he or she is such an official (or, in the case of a member of a House, the functions of the office of member), or(5) The following may, for the purposes of subsection (3), be treated by the Deputy Commissioner or the Commissioner as an act or omission done or made by the public official referred to in that subsection, namely an act or omission by a person who is a connected person in relation to the public official and either—
(b) the maintenance of confidence in such performance by the general public, and subsequent references in this Part and Part 6 to a contravention of this Act shall, where the context admits, be construed as including references to such an act or omission.(a) the act or omission is proved to have been done or made by the person with the prior consent or connivance of the public official, or(6) In determining whether either of paragraphs (a) and (b) of subsection (4) applies to an act or omission referred to in subsection (3), the matters to which regard is to be had shall include whether the act or omission involved, to a substantial extent, a failure to comply with section 10.
(b) although it is not proved to have been so done or so made, each of the following applies—(i) the act or omission is proved to have resulted in a benefit, directly or indirectly, for the public official (to his or her actual knowledge), and
(ii) the public official has not, before the making of the complaint concerned, sought to relinquish, or otherwise taken steps to cease his or her enjoyment of, the benefit.
(7) Subsection (6) applies notwithstanding the provision made by subsection (9)for the treatment of a complaint that alleges a contravention of section 10.”.
Amendment No. 37 proposes to insert a new subsection at the beginning of section 33(2) that relates to amendment No. 11 to section 12. As explained earlier, the intention is that the amendment will also allow the new standards commissioner to investigate a complaint made regarding a contravention of the ethical provisions contained in the existing Acts related to the public bodies, as well as under the Bill.
With regard to the new subsections (3) and (7), I am advised by the Attorney General that it is necessary to include the provision in existing legislation relating to a specified act being included by way of amendment in this Bill. A specified act in the existing legislation means conduct that is inconsistent with the proper performance of an official's functions. It is subject to investigation and publication of a report by the commission. As there is nothing in the current Bill to mirror this provision, this amendment has been drafted to include a similar provision in the Bill. This will allow investigations which can be currently carried out to continue to be carried out.
Section 34 provides that if the commissioner receives a complaint other than in relation to section 10, that is, the provision on standards of integrity, the commissioner shall make initial inquiries and will dismiss a complaint if he or she is of the opinion that it is frivolous, vexatious or repetitious, that it would be more appropriately dealt with by the Government, that it relates to a time when the respondent was not subject to this Act, that the identity of the complainant is not disclosed or that it is unrelated to the functions of the respondent.
I have a difficulty sometimes in understanding parliamentary legal language. The provision to the effect that the identity of the person making the complaint is not disclosed is fine, as is the provision that it relates to a private matter and is unrelated to the functions of the respondent. However, will the Minister explain the provision that "it relates in substance to a period when the respondent was not a public official"?
Let me bring that scenario to life. Deputy Sherlock asked me earlier about the period to which the law would apply to a member of a local authority who owned a piece of land and his or her interaction with the local authority development plan. What this means is that if somebody came into possession of a piece of land, for example four years after he or she was a member of a local authority, the commissioner would then dismiss the complaint.
Section 36 provides for the referring of a matter to the deputy commissioner for investigation. This provides that where there has been a complaint made alleging that a contravention of the Act has occurred, and the complaint has not been dismissed or otherwise dealt with, the commissioner will refer the matter to the deputy commissioner for investigation. Subsection (2) provides that the commissioner will also refer a matter to the deputy commissioner for investigation where the commissioner is of the opinion there may have been a contravention of this Act and no complaint has been made, or if, in the commissioner’s opinion, it is in the public interest to have the matter investigated in order for the Act to be complied with and to identify any contravention and the person who committed the act or default concerned. Subsection (3) provides that a reference in this section to a contravention of this Act does not include a reference to a contravention of section 10.
The key part of the section is subsection (2) where we are making a major change in the Bill. At present much of the law in this area is reactive, so an investigation can only be made if a complaint is actually made. This subsection means that if the commissioner believes that something has occurred that in his or her judgment is not compliant with the legislation, he or she can delegate to the deputy commissioner that this matter should be investigated.
Chairman, the most likely way in which an issue might arise might be in terms of the returns that a member might make. As an example, it is entirely possible that somebody who is subject to this legislation could furnish a return that the standards commissioner believes is not compliant with the legislation. On the back of that, he or she would initiate the investigation in the matter. There would be information shared with the standards commissioners that is not in the public arena and because it is not in the public arena, it will not prompt a complaint.
On the possibility of a commissioner going rogue, to use the Deputy's phrase, though I think that is dramatic language, for what would happen here - - - - -
What I am confused about is the use of inverted commas in section 36(2)(a), which refers to the commissioner, "where he or she is of the opinion that there may have been a contravention of this Act( a "suspected contravention")". Why are the words "suspected contravention" in inverted commas?
I know that Deputy Calleary may have had a little bit of Hollywood in mind in his wording, but I also have a concern in that regard. Should section 36(2)(a) not include the term "based upon the submission from a public officer holder"?
In those circumstances, if we were to include that requirement, it would actually end up limiting the power of the standards commissioner to do his or her work. This is a particular power the Standards in Public Office Commission believe would aid the office in its duties. I believe that the most likely way this would be triggered is through the returns I spoke of earlier. It is possible that the commissioner may see something in the public arena that merits investigation. Section 35 refers to a preliminary investigation where an assessment could be made about whether or not a more substantive investigation is needed.
I must oppose the Minister in this case. It may be a good thing that if something is triggered in the public arena and the commissioner can go back to the submissions received from public office holders. I am a little concerned that-----
If something appears in the public arena and the commissioner has the opportunity to go back to a submission, then the submission should be the triggering opportunity. There are the submissions and also the opportunity of complaint. It is not that I want to curtail the commissioner, but as Deputy Calleary has said, somebody could act because of a vendetta or a wish to harm. The powers are a little too sweeping in my view.
Presumably we must follow the paper trail. To go back to first principles again on section 36(2) (a), which states, "the matter concerned is one in respect of
which no complaint has been made to the Commissioner". The commissioner acts on the basis of a suspected contravention-----
-----but that is on the basis of submissions that have been made where the public official has been through an informal process in engaging with the officials within the Standards in Public Office Commission, SIPO. It is only after a long period and informal engagement, and a lack of satisfaction on the part of the commissioner, that the commissioner can suggest - not make a finding - that an investigation be opened up. The commissioner's reason would be that he or she believes that the engagement with the public official has been insufficient and that the official has not furnished the commissioner with all the details required. The commissioner would believe that there was potential for material contravention and could then trigger an investigation. As Deputy Calleary has said, there are sufficient checks and balances built in to the process.
I suggest the Deputy goes back to section 35 in this regard. Section 35 lays out the circumstances in which a preliminary inquiry would take place. In the circumstances that the commissioner felt that he or she needed to initiate that step it is extremely likely that a preliminary inquiry would need to take place first. I draw the Deputy's attention to section 35(2). The breadth of what is required would mean that the person who is the subject of the inquiry would have to be informed of what is underway at the preliminary stage. This would allow the person to respond to the commissioner's concerns. I would argue that the preliminary inquiry stage would take care of the concern raised by Deputy D'Arcy.
I wish to tease out an additional point with the committee. I gave the example of where something might be in a public official's return that is not in the public arena but which could lead the commissioner to conduct a preliminary investigation or inquiry. What if, however, there is an issue that is not contained in the statement made by the public official to the commissioner? It should be entirely open to the commissioner to say that he or she has received a statement - that for example lays out an asset - and the commissioner has reason to believe that the statement is not accurate. This section provides that the commissioner would have the power to initiate an inquiry in that area.
The investigation at that stage might only be a telephone call or a meeting with the member or the public official to ask if it is an error. There may be a perfectly reasonable explanation for an omission.
There could be. In my experience of dealing with the Standards in Public Office Commission in the past, its first step frequently is to ensure that the statements are accurate and that the officials realise the consequences of what they may have said. I am certain this attitude would not change. The preliminary inquiry could be a meeting to clarify a particular matter or to make sure the public official is aware of his or her requirements. I would not, however, want to understate the significance of what we are discussing. It is a big change. While I may disagree with Deputy D'Arcy, he is pointing to a big departure from where we were in the past. This measure has been called for. At the moment the vast majority of work the Standards in Public Office Commission can initiate is reactive but the proposed legislation provides that if SIPO has reason to believe there is an infringement, it can initiate the inquiry.
The checks and balances as addressed in the proposed legislation are covered in section 35. There is scope for the preliminary inquiry to take place first. This would require that the person be notified and at the very least require the person to come in for a discussion.
It is a huge departure, however, as the Minister has said. When it is related to local government and local councillors there is a large range of opportunities for the measures to cause trouble for public representatives who may be caught up innocently in some complaint. This is my difficulty with the proposed legislation.
One can only do so much. The Bill has been in circulation for a year. I accept the point made by Deputy Calleary that he believes the amendments could have been circulated earlier. We will unsure that if there are further changes on Report Stage everyone will have them. There have been calls for quite a while for the measures. The Bill has been available for a period of time. I have referred Deputies to section 35 in respect of the preliminary inquiry. I also point to section 34 which gives the commissioner the power to dismiss a complaint. We are being pretty clear about this. If the commissioner believes that a complaint is frivolous, vexatious or repetitious then the commissioner can dismiss it.
The one point here is that the Minister is empowering the deputy commissioner to appoint an investigation officer that shall be appointed for such period as the deputy commissioner may determine, shall be paid such fees and expenses as the deputy commissioner may, with the consent of the Minister, from time to time determine, may resign at any time, shall hold office on such other terms and conditions as the deputy commissioner may from time to time determine, including such terms and conditions as are likely, in the opinion of the deputy commissioner, to secure the officer's independence and impartiality. The Minister is potentially going outside the fold of the Standards in Public Office Commissioner. If I were to be subjective, I would say he is conferring on the deputy commissioner powers to appoint, hire, fire and pay at will. It would be better – the Minister will correct me if I am wrong - to have an in-house investigation staffed and properly resourced rather than putting it out to tender. I assume there would have to be a tender process. If it is not open to a tender process, what other process would it be open to? I fear that the person who could be appointed, although appointed by the sheriff, so to speak, could be a bit of a lone wolf. We cannot speak to the bona fides of that person and, without prescribing this in legislation, we are relying on the discretion of the deputy commissioner. That is a little worry that I have.
I would expect that the overwhelming number of such officers would be members of staff. We are providing for the possibility that something could be the subject of an investigation that the commissioner might feel requires expertise that his or her organisation does not have. As I sit in front of the Deputies, I cannot think of such a circumstance. Something could happen in regard to a matter of accounting, for example, and the commissioner might determine that a forensic accountant is required but such a person might not be available within the organisation. In this case, it would go out to tender. That is what is provided for in this Bill. Again, we have to trust that the commissioner would make a wise decision in appointing such a person to carry out his or her work, as I and, I am sure, colleagues do. I expect that a member of staff will carry out the work most of the time.
I accept the explanation on that. Let me outline what concerns me about all this investigation and so on. An investigation will happen because there is a disagreement, misunderstanding or complaint of one kind or another. As one reads down through all this, one notes it is stacked against the member because the member, be he or she a local politician or national politician, is up against it. The first thing is reputational damage. One could be completely innocent. Again, it is a question of striking the balance we are talking about. We are arming an agency of the State with significant powers and money to carry out an investigation. With regard to the preliminary part of this and the opening of the formal investigation, it is very important that there be a completely level playing field in order that, if another investigation is undertaken by the Department of Public Expenditure and Reform, it will at least know it found something wrong. A suspected contravention has to be based on the submissions that have been made or the papers that have been returned by the member.
If we do that, we limit the latitude of the commissioner to investigate a matter if he or she deems it needs to be investigated.
On reputational damage, such investigations would have to take place privately. Of course the commission would have to talk to people, and other people do talk. That will happen. We have just dealt with a section that made clear that oral hearings will not be the norm. If they were, they might infringe later criminal proceedings. What I am now reflecting on is that if we go back to the earlier section we referred to in regard to preliminary inquiries, we should realise it is the preliminary inquiry stage where these matters can be dealt with. If a matter is raised that turns out to be unwarranted, it will be eliminated in the preliminary inquiry and will not lead to a further inquiry.
Can I make a point? I spoke to a person who had an issue – I will not go so far as to say "disagreement" – and the term "come clean" was used on multiple occasions. I am concerned that we will have a Government agency doing good work that is required being pitted against an individual. The agency has the opportunity to go outside its own office for services.
The investigation officer can enter and "search any premises in or at which the officer has reasonable grounds for believing there may be found any document or thing relevant to an investigation being conducted under this Chapter and may seize and remove any document or thing so relevant that he or she finds in or at the premises." If this power is being conferred on the deputy commissioner, and acknowledging that we are going to come to the relevant section-----
I do not want to be associated with that comment because I am not saying that. I just want a deeper understanding of the dynamic that is at play here in relation to the power of the deputy commissioner and his or her staff.
Maybe I am being naïve here but I believe it is just tidying up matters so the deputy commissioner can do his or her job and so the staff members can do their job without having to seek powers every time there is an investigation. Is this just being practical or is there something else?
The point does not concern the deputy commissioner per se but the principle that the office of the commissioner can now initiate an investigation if it believes there are grounds. Under subsection 37(1), it is made clear that, and I quote, "The Deputy Commissioner shall appoint one or more suitable persons ... to perform the functions expressed by this Chapter .. one or more members of staff of the Office of the Commissioner may be the subject of such an appointment".
Yes, but what is inherent in the legislation is that the commissioner has the powers and the power to appoint a deputy commissioner. Whether or not the investigation officer proceeds by virtue of an appointment internally by the deputy commissioner or the commissioner, the commissioner can still do what is outlined anyway. What is pertinent here is that the legislation provides for entering and searching a premises.
For the purposes of the current legislation, we have gone from a position where I, as a public official, will interact with a professional person to ensure that my house is in order and I am compliant with the legislation to one where, if there are sufficient grounds, subject to all the criteria proposed and if all else fails, this power is conferred on them. I am not against those powers being given. I am just trying to get a sense of where the Minister is coming from on that.
Deputy Calleary asked if these are new sweeping powers and the motivation for them. Is it to say that we are taking a belt and braces approach to this standards in public office legislation and to have powers that are so sweeping, someone will have no other choice but to be absolutely compliant because failure to be compliant means they will literally have people knocking on their door, which is not necessarily the case at the moment? I am trying to get an understanding of the motivation.
The motivation is that our current legislation in this area is deficient by international best practice standards in terms of the weight of power for the Standards in Public Office Commission, SIPO, being mostly reactive. If we compare where we are currently versus the recommendations of the Mahon tribunal, for example, which called for more powers to be available to these bodies, we are different from other jurisdictions in this regard. I do not see any inconsistency between what the Deputy said, which is the continuation of the work SIPO does in terms of meeting members, explaining their requirements to them and, on occasion, helping them to be compliant while impartially implementing the law, and, as a last resort, giving it the power to initiate an investigation if it has reasonable grounds to believe that a public official is not compliant with the law.
I might look at the section before Report Stage with regard to a preliminary investigation because I believe many of Deputy Doherty's concerns could be dealt with at the preliminary inquiry stage. For example, if the commissioner forms a view on a matter as a result of a misunderstanding, a misapprehension or a concern that was ultimately found out not to be true, that can be dealt with at the preliminary stage as opposed to it being dealt with by a full inquiry. I want to be clear with colleagues. This is a change in terms of where we are at the moment. I will not understate it. It is a change, but I believe it is a change that is needed.
I accept the changes and the motivation. Would it be possible for a report to be laid before the Houses of the Oireachtas, perhaps annually? I do not want to anonymise the efforts but I am referring to a report stating publicly the number of cases that have been investigated or where these powers have been used. In that way we would have a sense of how this new legislation will take shape. Is that a reasonable request?
We have submitted an amendment, which I think we dealt with, requiring that the commissioner lay a report in the Oireachtas Library. We dealt with that earlier this morning. It is section 31. I will consider what the Deputy has said about the detail it would contain but I believe it will end up being a matter for the commissioner. I will give an example of one circumstance I believe we should consider carefully, namely, that the commissioner takes account of the fact that they may have initiated four investigations, for the sake of argument. I would not want Members of the Oireachtas to be in a position where four investigations have been carried and there is a major debate to try to identify the four Members into whom that investigation was carried out.
We have laid out the requirement that the commissioner should update the Houses of the Oireachtas Library. Section 31(1) states, "The Commissioner shall, in each year, prepare a report on his or her activities in the previous year, and may prepare such other reports for the Minister (i) as the Minister requests ... or (ii) as, on the Commissioner's own initiative, from time to time as the Commissioner considers appropriate". If we were to go beyond that, I would be concerned that we might lay out information which might, over time, undermine the reputation of people who are subject to the Act.
I accept the Deputy did not do that. However, something I believe we should reflect on is if we lay down in statute the number of investigations that have taken place, for example, it could have unintended consequences. That is all I am saying. We have changed the Bill to make it clear that the commissioner has to lay a report in the Oireachtas Library or, if he or she believes there is an issue that requires a report, that he or she is able to do it.
I hear the point the Minister is making and the logic is sound with regard to media outlets trying to find out the people involved. He said he believes this is required. The Mahon tribunal has made assertions that there is more to be done on the side of SIPO, but the Mahon tribunal is historical at this stage. In the number of years since SIPO has been in place, and while I do not want to go over the analysis in terms of what was inadequate in 2012, 2013 and 2014, I am questioning the extent to which it is currently inadequate. This is a fairly big change and I believe nobody knows about it.
-----and the fact that ignorance is not a defence before the law, but this legislation is not yet law. In response to Deputy Calleary earlier, I committed to writing to local authority representative bodies, for example, to notify them of what is currently before the Oireachtas, which we will do. However, we are debating a point of principle, namely, whether this body should have the ability to initiate an investigation if it believes it is warranted. If the commissioner believes that a matter has been declared, or not declared, he or she has a concern about it, and he or she alone is in possession of that information, should the commissioner have the ability to do something about it? I believe the answer to that question has to be "yes" because if not, we will be back to all of this being driven by the kind of impulse we have currently, much of which is reactive.
We can consider before Report Stage Deputy D'Arcy's concern to make sure we do not get to a point where there is the potential for a wave of unnecessary investigations being carried out. I understand his concern. What we might do is look at section 35 on the preliminary inquiry to see if that section could be strengthened to ensure we do not get to the point where investigations or inquiries are carried out on matters that are evidently not required.
The presumption is innocence. We have to vindicate a person's good name as well. I do not believe any of us are against this legislation but we want to make sure that sufficient checks and balances are built into the investigatory powers provisions to ensure that nobody acts in a nefarious fashion to bring somebody down, so to speak, in a malevolent way. We want to make sure that the person who puts their name on the ballot paper or the person who is deemed to be a public official has a fair crack of the whip in terms of the way the legislation is crafted. Those are my concerns and, to be frank, I think the Minister has addressed them.
I take Deputy Sherlock's point. My contention, at present, is that a fair crack of the whip is given, to use the Deputy's own phrase. In the legislation, even when I provide to the committee a table that explains the differences, we are addressing a separate point. The separate point is a point of principle which Deputy D'Arcy is raising legitimately. I accept Deputy D'Arcy's need to raise it. Even if the requirements in many cases for elected members do not change massively, a notable change is the ability of the commissioner to initiate something if he or she feels it is warranted. To address the debate that the committee is having with me, I and my officials will have a look at section 35 to see if there are any potential changes that could be made on Report Stage to ensure the right step is in place to maintain the level playing field that I am anxious to ensure is in place.
That would be helpful. On the step from the preliminary report, the emphasis in the legislation is on the ultimate investigation. I am expressing my concern about the suspected contravention. Section 38, in reference to the powers of the deputy commissioner, states, "the purpose of the proceedings concerned that appear to him or her to be reasonable". If we are going in this direction, it must be fairly clear, in the interest of the public official, that he or she is given some chance of explanation. We have that with SIPO at present.
We do. I draw the Chairman's attention to the preliminary inquiry stage, specifically section 35(5) and (6). Subsection (5) states, "Following the completion of a preliminary inquiry ... the authorised official shall prepare a report of the inquiry, outlining his or her opinion in relation to the complaint concerned and the reasons for that opinion and shall furnish the report to the commissioner, the complainant (if any) and the respondent." It lays out, in subsection (6), the ability of the commissioner to dismiss the issue at preliminary inquiry stage. I will have a look at section 35 to see if there is any way in which we could amend this to deal with the concern that is being raised.
I will be standing by, and asking for the support of the committee and the Oireachtas on, ensuring the ability of the commissioner to investigate an inquiry and to appoint somebody to do it. I believe there are adequate checks and balances in place, but given the sensitivity of this matter, I will have a look at section 35 and revert back on Report Stage.
I move amendment No. 40:
In page 48, to delete lines 20 to 30 and substitute the following:"(a) direct in writing the person, the subject of the investigation concerned, or any person information in whose possession would assist the investigation, to, as appropriate—(i) provide, by means of a statement prepared by the person for the purpose, information, orthat is specified in the direction, within such reasonable period as is specified therein, to an investigation officer,".
(ii) produce any document or thing in his or her possession or power,
I move amendment No. 41:
In page 49, to delete lines 14 to 32 and substitute the following:"(7) A person—(a) shall not fail or refuse to—(i) provide, by the means specified in subsection (2)(a), information, orto an investigation officer that is legally required under subsection (2)(a)to be provided or produced, or
(ii) produce any document or thing in his or her possession or power,
(b) shall not without just cause or excuse disobey a direction under subsection (2)(b).".
I move amendment No. 44:
In page 51, between lines 18 and 19, to insert the following:"(4) In deciding, under subsection (3), whether to accept a recommendation that it be found that a particular contravention has occurred (or, in a case falling within paragraph (c)(ii)of subsection (3), to accept the recommendation lastly mentioned in subsection (2)(b)) the Commissioner shall have special regard to whether the particular issues of fact concerned would be more satisfactorily resolved by the Commissioner's proceeding as mentioned in Chapter 4.”.
I will comment on section 39 to put on the record what we discussed a moment ago. Given the discussion we have just had, I have a duty to explain to the committee how the investigative procedure moves forward.
Section 39 sets out the requirements of the deputy commissioner in preparing a report of the investigation and furnishing that to the commissioner. Subsection (1) provides that after the completion of an investigation, the deputy commissioner will consider the evidence for the purposes of making a recommendation and prepare a report on the investigation and furnish it to the commissioner. Subsection (2) provides that, within the report, the deputy commissioner shall provide a recommendation to the commissioner as to whether or not a contravention has occurred. Subsection (3) lays out how the commissioner will respond to that.
Deputy Sherlock asked earlier about the modality and how it will work. The way it will work is that after the investigation is complete, a report is furnished. The report includes a recommendation and it is then up to the commissioner to decide whether that recommendation requires further action. What I am open to considering is whether the preliminary section of all of this could be changed a little to deal with the concerns that have been raised.
Section 40 provides for the conduct of oral hearings. Subsection (1) provides for what is referred to as an "oral hearing procedure" by the commissioner. If, in relation to a recommendation in the investigation report of the deputy commissioner, the commissioner's decision is not to accept the recommendation of the deputy commissioner and he or she does not refer the matter back to the deputy commissioner for further investigation, the commissioner will hold one or more sittings for investigating the matter, at which he or she may receive submissions and evidence.
Subsection (2) provides for oral hearings to be held in public or private at the discretion of the commissioner. Subsection (3) provides that a request by the person being investigated for a sitting to be held in public may be accepted or refused by the commissioner. Subsection (4) provides that the commissioner may end or postpone any proceedings by way of the oral hearing procedure.
Subsection (5) provides that the commissioner may receive evidence given orally, or by the means specified in subsection (9), or as otherwise directed, including by live video link, a video recording, a sound recording or any other mode of transmission. Subsection (6) provides that a witness who attends before the commissioner to give evidence may be required to give evidence on oath. Subsection (7) provides that the commissioner may administer any oaths necessary for the purposes of the oral hearing procedure.
Subsection (8) provides that the commissioner may arrange for the examination of a person anywhere in or outside the State and may receive the evidence of the person taken at the examination in a form determined by the commissioner, and the relevant rules of the court relating to evidence in proceedings of the High Court will apply with any required modifications.
Subsection (9) provides that a witness who gives evidence other than by attending in person or by means of a live video link will provide the commissioner with a sworn statement that the evidence was given by him or her voluntarily and is true and accurate. Subsection (10) provides that where the commissioner has received evidence from a witness who is required to provide a sworn statement under subsection (9), the commissioner may request additional information relating to that evidence. Subsection (11) provides that a witness must comply with a request under subsection (10) within the specified period. Subsection (12) provides that the requirements of subsection (9) relating to the provision of a sworn statement also apply to any additional information given under subsection (10).
Subsection (13) provides that the steps taken in the conduct of the oral hearing will be determined by the commissioner and will include notifying the complainant and the person who is the subject of the investigation of the date, time and place of a sitting; giving the person being investigated the names of the witnesses who it is intended will give evidence; enabling the person being investigated and the complainant to be present at the relevant sitting and enabling the first-mentioned person to present his or her case; enabling written statements to be admissible; enabling any signature on a document to be taken to be that of the person whose signature it appears to be; the examination and cross-examination of witnesses; and the making of a sufficient record of the proceedings.
This will ensure that fair proceedings are afforded to the person being investigated.
Subsection (14) provides that on conclusion of the oral hearing, and having considered the evidence given or presented, and any submissions made, the commissioner shall make such findings of fact in respect of the matter the subject of the investigation, as he or she considers appropriate.
It seems to be a theme that the weight of right is completely with the commissioner and with this proposed office. The commissioner can make the call on whether a hearing will be held in public or private but if the person whom the hearing is about wishes to have it in public, he or she will have to apply to the commissioner in this regard. The commissioner can decide on that. Is there an appeals process? What is the back-up process if the commissioner decides to have a public hearing where the applicant wants a private hearing?
I will deal with the first question, the relevant rules of the court relating to evidence and proceedings of the High Court will apply, with any required modifications. While it is not judicial, subsection (7) makes clear that the rules of the High Court in respect of evidence will apply.
We are not envisaging at the moment that the person is a judge but the rules and the way it is laid out make clear that it will be of a very high standard. In answer to the second question on whether it could lead to a criminal investigation, the answer is "Yes".
We are in a judicial process. There is a hearing where people are under oath, documents are privileged, the commissioner decides on costs and then this quasi-judicial hearing will maybe dictate whether there could be a criminal investigation. A criminal investigation does not normally presume guilt but in this circumstance guilt would have been determined before a criminal investigation gets under way.
We have to have somebody who will determine whether the law is being infringed. I do not see in what we have outlined here how the rights of the individual in respect of the presumption of innocence are infringed.
There has been a hearing, potentially in public, where evidence has been heard and the commissioner makes the call on the outcome of the hearing. That is in public, the findings are discussed and then a criminal investigation starts.
No, it is possible that a criminal investigation could start. I did not say one would start. For example, there is a provision later in the Bill about fines being applied in this area, they are referred to as fixed charge notices, but the possibility of that happening is laid out in the Bill. There is also a more likely mechanism where, for example, the standards commissioner would write to the relevant Oireachtas committee and say that in his or her opinion the law has been infringed. It is then up to the relevant Oireachtas committee to make an adjudication on the matter if the member is a Member of the Oireachtas.
On section 40(13)(c), which refers to "enabling the person, the subject of the investigation, and complainant (if any) or a person representing the complainant to be present at the relevant sitting", does that mean legal representation?
Section 42 makes reference to the status of privilege. Subsection (1) provides for the absolute privilege of documents and reports of the commissioner, deputy commissioner, an authorised official or an investigation officer, wherever published. Statements made at meetings or sittings for inquiries or investigations by the commissioner, deputy commissioner and an authorised official or an investigation officer or an adviser or agent of any of the foregoing, will also be absolutely privileged.
Subsection (2) provides that utterances made by a person conducting an inquiry, investigation or hearing, or made otherwise than at meetings by a person in the performance of functions, under Chapters 2, 3 and 4, shall also be absolutely privileged wherever published.
That would mean that the privilege extended to a Member of the Oireachtas which, as I understand it, means that they cannot or should not say anything that would trigger legal action against them, would also be extended to the work of the commissioner or deputy commissioner. That might apply for example in respect of dealing with a matter that does not concern a Member of the Oireachtas, it could be a public official or a member of the Civil Service.
As it is now 1 p.m. I thank the Minister and his officials for attending.
A request was made that the Members of the Dáil and Seanad and the representative bodies of the local public representatives be informed. Will that take place now?
I understood that what was requested was that if the Bill were to be enacted, the kinds of briefings that the Standards in Public Office Commission, SIPO, has performed in the past would continue to be available. I am sure they would be.
Yes. We will do that. The matter for me to reflect on is whether the preliminary inquiry section of the Bill can be used to deliver our objective and address some of the points made there.
I also gather that members want a reference to medical services that includes psychological or psychiatric ones. That is a particularly important point that I shall consider.
I am sure the Minister will peruse the transcripts to identify all of the queries. Deputy Calleary mentioned that the balance of rights in this Bill is heavily in favour of the commissioner. I ask the Minister to consider the matter.
We will look at it but I believe that is not the case. We will certainly consider the matter and furnish information.
We will furnish information on another matter. We will provide a consolidated table that compares where we are now with where we will be after the Bill is implemented. We will do so using each of the officials required in the legislation. It is difficult to explain the information because there are three categories of officials - A, B and C. It would be easier to explain how the scheme works to colleagues if everyone had the same table in front of them.
I shall provide the comparison table for our next meeting. At the start of the meeting I can explain how the scheme works, which will make a big difference to helping everyone to understand the Bill.