Adjournment Debate Matters. - Standards in Public Office Bill, 2000: Report and Final Stages.

I move amendment No. 1:

In page 4, between lines 33 and 34, to insert the following:

"Section 2(1) of the Principal Act is amended by the insertion of the following after ‘apart from the person' but does include a life partner, a co-habitee or a partner whose role is closely akin to that of a spouse.".

This amendment was discussed on Committee Stage and relates to the principal Act, which places responsibilities on spouses to make declarations or be involved. In modern society, people have close friends or partners who are not defined in the original Act. This amendment is appropriate by including partners or co-habitees who act in a role akin to that of a spouse. During a discussion of other legislation, former Deputy Connolly raised concerns about arrangements concerning those who came and went, as he put it, at various times while the spouse was tied up in legal obligations under different ethics Acts. This is an attempt to be comprehensive and cover all possible combinations.

We discussed this issue on Committee Stage when I agreed to think about what Deputies McGrath, Mitchell and others had said. I am concerned about including a reference to life partners in the legislation. There are broad issues here concerning changes in our society in the last 20 years, as the Deputy accepts. Social mores and standards have changed. A definition of life partner in the Bill could be, in some circumstances, intrusive and I do not want to go that far. If someone is co-habiting with a partner in a way similar to marriage, in either a heterosexual or homosexual arrangement, it might be known to a circle of confidantes but not to an employer or family members. It might in some limited circumstances be an arrangement which the person concerned would be anxious not to have disclosed to an employer or family. Not everyone in our society is comfortable with the idea of co-habitation. When some issue arises that requires a person to make a declaration, for example, a public servant, to a chief executive of his or her organisation do we want the person concerned to have to disclose this aspect of his or her private life or do we want them to lie about their personal circumstances? My preference is not to bring these arrangements within the remit of the Bill for now. Very little domestic legislation addresses this issue and we would have a long way to go towards an accepted definition of co-habitation. The Bill should stand as it is in this regard.

I am disappointed that while the Minister acknowledges the need to broaden the scope of what is already in legislation he is not prepared to bite the bullet on this occasion. Who will bite the bullet and take on and carry through this issue? The Minister's points are relevant but at the same time if one person has to make the declaration based on his or her relationship then it should apply across the board. We are ducking the issue here and I am disappointed the Minister will not accept it.

We all accept the principle of what Deputy McGrath says. It does seem unfair that people in a relationship akin to marriage are treated in a different way to those who are in a normal marital relationship. In fact it is blatantly unfair but I accept the problems of definition and intrusiveness mentioned by the Minister. Like Deputy McGrath I do not know how we can bite this bullet in a manner fair to all concerned but it is an issue that we must keep in mind.

To show my bona fides it may interest the Deputies to know that we had a good look at this issue internationally. We looked in particular at some societies that seem far more advanced, in some respects, in this area. We found very little in legislation anywhere with regard to the issue and by and large the legislation reflects only the spouse and this is in societies that see themselves as very liberal. I agree the issue will have to be faced but I cannot do it in the context of this specific legislation. Also, I did not want to burden people excessively as they have enough to cope with.

Amendment put and declared lost.

I move amendment No. 2:

In page 4, lines 41 and 42, to delete all words from and including "who" in line 41, down to and including "High Court" in line 42 and substitute "who shall be a person nominated by the Minister".

This relates to membership of the commission and to who should be chair. Instead of the chairperson having to be a judge or a former judge of the Supreme or High Courts we say it should be a person nominated by the Minister. The amendment relates to some of those we debated on Committee Stage. It is necessary that the chairperson of such a commission would be able to prepare and produce his or her tax clearance certificate; we could not expect Members or public servants to be presided over by a chairperson of a public offices commission who might not. The same standards should be applied to the chairperson. We are anxious that the Minister should have a free hand in relation to who should be chairperson and that it would be a person nominated by him who would become chairperson of the body.

The Deputies' amendment would mean that instead of stipulating that the com mission chairperson will be a judge or former judge of the High or Supreme Courts the chairperson would be any person nominated by the Minister for Finance. This would represent a radical change in the composition of the commission and would be a departure from what is being recommended by a number of groups. Two of the committees which examined the Government's proposals for the Standards in Public Office Bill, the blue book proposals, recommended that the commission be chaired by a judge. The constitution review group and an all-party committee also recommended that the new commission be chaired by a judge or former judge. Moreover, the existing commission has itself expressed the view that it would be a good idea if the new commission was headed by a judge of the superior courts. The new commission may find itself investigating matters akin to those currently being examined by tribunals of inquiry. The Government considers that the commission therefore needs a person with strong legal expertise and experience to act as its head. There was all-party recommendation on this point and if I did not implement it I would be accused of ignoring the committees. It is sound and on balance is the right approach.

Amendment, by leave, withdrawn.

Acting Chairman:

Amendment No. 3 is out of order.

Amendment No. 3 not moved.

I move amendment No. 4:

In page 6, line 50, to delete "any necessary modifications.'." and substitute the following:

"any necessary modifications.

(2J) The Commission shall from time to time, but not less than twice each year, consult with the Committees in relation to the operation of this Act, the Act of 2001 and, in so far as it is relevant to the functions of the Commission and the Committees, the Electoral Act, 1997, and in relation to such (if any) other matters as they consider appropriate.'.".

This arises from part of an amendment put down by Deputy Jim Mitchell on Committee Stage. Deputy Mitchell proposed that the Committee on Members Interests would consult with the commission at least twice a year. The amendment I propose does that. I am grateful to Deputy Mitchell for this proposal. There are, of course, issues of overlap and mutual interests between the remit of the committee and that of the commission and some level of communication between them will be valuable in ensuring the effective operation of the legislation. I thank the Deputy and am happy to bring forward an amendment recognising where it came from.

Amendment agreed to.

I move amendment No. 5:

In page 7, line 14, after "public" where it firstly occurs, to insert "or which may damage public confidence in public administration generally".

This is an issue we debated at considerable length on Committee Stage. Essentially it refers to the nature of the damage that is done to public confidence. The Bill as formulated after Committee Stage effectively says that if something done by someone in his or her particular role affects the public confidence in his or her performance of that role then the matter, provided it is serious enough, can be referred to the commission. This amendment attempts to cast it more generally. If, for example, a senior Garda officer does something not within his remit, such as something less than desirable but not illegal involving planning, it would reflect badly on the performance of public administration generally although it might not necessarily reflect on his capacity to act as a garda. I am sure the Minister could think of far more radical and germane examples than that but the basic point is that I would like the amendment to generalise the concept of damage to public confidence in the administration of public affairs.

I gave some consideration to this and I understand what the Deputy says. I tried to imagine the sort of extreme examples one would need that suggest this amendment would be necessary but I could not see how it was. I am not disposed to accept the amendment although I do appreciate its intention. The Deputy seeks to deal with a situation where a public official or office holder could do something so serious as to undermine the confidence of the public in the operation of public administration generally but which is remote from the individual's performance of his or her own official duties. It could be argued that it was not actually consistent with the proper performance of the duties of the position. If the existing definition stopped at that point I would agree with the Deputy that it did not go far enough. However, as the Act stands, a specified act can also include an act or omission which is inconsistent with the maintenance of public confidence in the performance of the official position concerned. It is hard to see whether a case in which a person was shown to be involved in a culpable manner in a very serious matter would undermine confidence in that person's performance of his or her official position. One could certainly construct an example where the matter concerned is very remote from the person's actual performance of his or her duties and the person's official position was one which did not involve any great personal responsibilities. However, would we really want to have such a case within the commission's remit? The commission would probably not want to investigate anyway. This is the argument for the existing narrower definition. For that reason, I will not accept the amendment.

The amendments discussed and those related to the Bill have been both interesting and helpful in ensuring that we have the correct balance. This issue, like most of the others, is one of judging that balance bearing in mind that, in some respects, we are venturing into uncharted territory.

The legislation will have to be tested against its application in practice and refined, as necessary, in the light of experience, both on this point and others. I am happy to leave the definition as it is. I am not disagreeing that there is a remote possibility that Deputy McDowell's argument is true. However, the Bill is about right in terms of our being able to enact it.

As the Minister of State knows, he may have cast the definition too narrowly, and I may have cast it too broadly. I am not sure if there is a happy medium.

Amendment, by leave, withdrawn.

Acting Chairman:

Amendment No. 6 is in the name of the Minister, and amendment No. 7, in the name of Deputy McDowell, is an alternative. They may be discussed together, by agreement.

I move amendment No. 6:

In page 7, line 40, to delete "may refer the complaint" and substitute ", at its discretion, either, shall not investigate it or shall refer it".

This amendment arises from an amendment tabled by Deputy McDowell on Committee Stage. I indicated that I agreed with the thrust of his amendment and I trust that the effect of what I am now proposing will meet with his approval. This is in addition to the general power of either the commission or committee to discontinue complaints at any time, when it is appropriate to do so.

This amendment meets the requirements of my own amendment.

Amendment agreed to.
Amendment No. 7 not moved.

I move amendment No. 8:

In page 8, between lines 3 and 4, to insert the following:

"(6)(f2>a) Documents submitted to the Commission in pursuance of a complaint or rebuttal thereof shall be exempt from the provisions of the Freedom of Information Act, 1997.

(f2>b) No such document shall be published in whole or in part except to the extent that the Commission deems it necessary for the purposes of its decision.".

With regard to the commission, complaints, some of which may be spurious or of no substance, can be made by various people. We are concerned that if somebody makes such a complaint to the commission – subsequently brought to light under the Freedom of Information Act – it could do great damage to the person concerned, whether it is a Member of this House or a public servant. The provision we are putting forward will exempt such material from being accessible under the Freedom of Information Act. Hence, it will prevent spurious complaints being made available for publication.

However, we leave matters open to the extent that if the commission, at some stage, deemed it necessary to publish any material, it could do so. The provision does not imply that no information at all should be forthcoming from the commission. It could publish or release documents at its own discretion. We felt that it would be proper if the commission was exempt from the Freedom of Information Act.

There is a broad issue requiring discussion regarding how information becomes available from the commission. Currently, similar circumstances obtain with regard to complaints made to the Office of the Ombudsman. Clearly, in adjudicating on a particular complaint, the commission will be required to publish reports, which will come into the possession of this House or the Ceann Comhairle. Presumably, in those reports, a certain number of facts will have to be revealed, whether or not the commission found merit in the complaint made. That is reasonable.

Although I do not think it is provided for in the Bill, it is likely that the commission will decide, using its discretion, that it might want to present, on a regular basis, something similar to the Ombudsman's report to give an indication of its jurisprudence. The Ombudsman's office does this by taking cases, sometimes anonymously and sometimes identifying the person against whom the complaint is made or by whom the complaint was made. It sets out as many facts as are necessary to guide people in using the process in the future. This would be a reasonable way to progress, i.e., setting out as many facts as are necessary to establish how matters are dealt with to satisfy the recipient of the report that a particular complaint has been dealt with in a fair fashion. Also, it allows a committee form a view on how to move forward. I understand that the Freedom of Information Act does not deal with this – the Minister of State can correct me if I am wrong.

What safeguards is the Minister putting in place to protect those who come under this legislation?

With reference to the amendment of Deputies McGrath and Gay Mitchell, which would provide that the Freedom of Information Act would not apply to material received regard ing a complaint to the Standards in Public Office Commission, I recall some discussion on this point on Committee Stage, and I now have a greater understanding of the points made by the Deputies.

As regards complaints under the Ethics in Public Office Act, there is no need for this provision. Section 35 of that Act states that a person may not disclose information obtained by him or her under the Act or by being present at a private sitting of the commission, subject to appropriate exceptions.

Section 28 of the Bill under discussion provides that the Ethics in Public Office Act, 1995, be construed together with the Standards in Public Office Bill. This means that the reference to section 35 of the Ethics in Public Office Act, 1995, applies equally to the Standards in Public Office Bill. There is already a secrecy provision in the Bill which goes a lot further than Deputies McGrath and Jim Mitchell are providing for in their amendment.

Perhaps we were at cross purposes in terms of understanding each other on Committee Stage. The old provision prohibits publication subject to the appropriate exceptions, not just of documents submitted by a complainant or in a rebuttal of a complaint, but also documents that might be created within the commission that may contain information obtained under the Act. The Freedom of Information Act applies to the commission but does not override the confidentiality provision in section 35. Therefore, this applies notwithstanding that the Freedom of Information Act applies to the body concerned.

With regard to the point made by Deputy McDowell, the commission has the ability to produce annual reports and special reports as well.

Does the Minister envisage that such reports will set out the way in which particular cases are to be dealt with?

It will if we are to work on the basis of similar reports supplied by individuals who are in such positions. It is what I expect and I hope those involved receive guidance on the matter.

I thank the Minister for his clarification. It meets my requirements.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 8, line 7, after "holder" to insert "or the holder of the office of Attorney General but not a member".

This amendment is to provide that a specified person, for the purposes of the Bill, will include an Attorney General who is not a member of the Houses. Such a person is probably covered by the term "holder of position of employment", which is provided for in the Bill. However, I have moved the amendment in the interest of clarity. I think Deputy McDowell made a reference to this before. It is a technical issue, but it is important.

Amendment agreed to.

Acting Chairman:

Amendments Nos. 10 and 17 are related and may be discussed together, by agreement.

I move amendment No. 10:

In page 8, between lines 24 and 25, to insert the following:

"Identity of Complainant.

5.–The Commission shall not deal with any complaint unless the identity of the complainant is disclosed to the Commission provided that the Commission may in exceptional circumstances decide that the identity of such complainant will not be disclosed to people other than people designated by the Commission.".

These amendments were discussed at some length on Committee Stage. The point was that, in normal circumstances, the commission should not investigate anonymous complaints but could, at its discretion, withhold the identity of a particular complainant if it decided that was the correct thing to do in the interest of justice.

The amendment arises from an amendment tabled by Deputy McDowell on Committee Stage. I indicated on Committee Stage that the thrust of Deputy McDowell's amendment was sound and accordingly I undertook to give serious consideration to it before Report Stage. Amendment No. 17 provides that the commission or a committee will not be able to consider a complaint if the identity of the complainant is not known to the commission or committee. I wanted both the commission and committees to be included in this amendment as there would not be much point in including the commission without including committees too.

Where the commission or committee considers that the circumstances so warrant, they may restrict disclosure of the complainant's identity where it is necessary for the investigation of the complaint. Section 35 of the Ethics in Public Office Act, 1995, provides that information obtained by a person under the Act or as a result of having been present at a private sitting of a committee or commission shall not be disclosed. To do so is an offence punishable by a fine, imprisonment or both.

I will outline the levels of penalty involved for the benefit of Members. A fine not exceeding £1,000, or a prison term not exceeding six months or both will be imposed for a summary conviction. On conviction on indictment, a fine not exceeding £20,000, or imprisonment for a term not exceeding three years or both will be imposed. Natural justice dictates that the subject of a complaint should know the identity of the complainant. Unlike Deputy McDowell's Committee Stage amendment, significantly the amendment proposed applies not only to the commission which can investigate complaints concerning office holders and public officials, but also to select committees which can equally hear complaints about Members. Everything is therefore encompassed in this amendment and I thank Deputy McDowell for bringing the matter to my attention.

We should state that in normal circumstances I expect the identity of the complainant would be disclosed. This amendment caters for what one would expect to be exceptional circumstances, where the job done by the person making the complaint or supplying the information would normally prohibit them from disclosing information. Such people may include public servants or bank officials who become aware of serious irregularities. In effect, this amendment allows a form of protection for whistleblowers in certain circumstances, when the commission will decline to disclose publicly the identity of the complainant. It is important that we state that in normal circumstances the identity of the complainant will be known.

The Bill contains a separate provision for whistleblowers so Deputy McDowell and I have copperfastened this matter.

Amendment, by leave, withdrawn.

Acting Chairman:

As amendments Nos. 11 and 12 are related, they may be taken together, by agreement.

I move amendment No. 11:

In page 9, between lines 6 and 7, to insert the following:

"(4) A person who takes disciplinary action in contravention of subsection (1) in relation to another person shall be guilty of an offence and shall be liable–

(a) on summary conviction, to a fine not exceeding £1,500,

(b) on conviction on indictment, to a fine not exceeding £50,000.”.

A new section was introduced into this Bill on Committee Stage to protect those making bona fide complaints to the commission. The important feature of the new section 5 is that a complaint to the commission or committee must be made reasonably and in good faith if the complainant is to enjoy immunity from any action arising from the complaint. Such protection will be denied to a person who makes a complaint knowing it to be false, misleading, frivolous or vexatious or who furnishes misleading information to an inquiry officer of the commission or a clerk of a committee.

Subsection (3) provides that the provisions of the Unfair Dismissals Act, 1977, will apply to a dismissal of an employee who makes a complaint under this Bill. Such a dismissal will be deemed unfair for the purposes of the 1977 Act. Subsection (4) defines disciplinary action for the purposes of the section and encompasses actions, intended as a punishment, taken in relation to the employment of someone other than the complainant. It also covers third party actions taken against a complainant at the instigation of the person subject to the complainant and in that circumstance both the instigator and the person taking the action will be deemed to have taken the disciplinary action involved. I signalled on Committee Stage that I wished to come back to this on Report Stage to deal with the penalties to apply where an employer takes inappropriate disciplinary action against a complainant.

Amendments Nos. 11 and 12 make it an offence for an employer to take disciplinary action against a complainant who has made a proper complaint. The penalty on summary conviction is £1,500 and on indictment £50,000. The amendments cover the situation where a person takes disciplinary action against a complainant at the instigation of another person. That will protect persons who might be disciplined by employers having made a complaint against a client or friend of the employer.

Amendment agreed to.

I move amendment No. 12:

In page 9, between lines 14 and 15, to insert the following:

"(b) Where an act referred to in paragraph (f2>a) is done by a person acting at the instigation, or on behalf, of the person the subject of a complaint referred to in subsection (1), both of those persons shall be deemed, for the purposes of subsection (4), to have taken disciplinary action in contravention of subsection (1) in relation to the complainant.”.

May I make a brief point, not intended to be frivolous? I noticed in the Dormant Accounts Bill, 2001, that the Department of Finance has started to provide that fines are expressed in euros rather than Irish pounds. Figures that seem round now will not seem so round a year from now.

That is a valid point.

Amendment agreed to.

Acting Chairman:

Amendments Nos. 13 and 16 are related, so they may be taken together, by agreement.

I move amendment No. 13:

In page 9, between lines 16 and 17, to insert the following:

"6.–(1) Before the commencement of this Act the Minister shall, by Order, set out in detail the procedure for making, processing and rebutting complaints.

(2)(a) The Order made under subsection (1) shall also provide for summary dismissal of complaints deemed to be vexatious or frivolous.

(b) Any complaint summarily dismissed under this subsection shall constitute an offence.

(3) The Order made under subsection (1) shall provide an appeal procedure against any decision on a complaint by the Commission under this Act.”.

This amendment arises from our discussion on Committee Stage. The amendment provides for the setting out of details regarding the making, processing and rebutting of complaints, in other words, the entire procedure of making a complaint should be set out in detail by the Minister by order. This amendment provides that if somebody makes a vexatious or frivolous complaint, they should be penalised.

I gave this some thought after Committee Stage. Deputy Jim Mitchell's wish that anybody making a vexatious complaint should be hanged, drawn and quartered before breakfast and the process repeated after lunch if needs be struck me as a little excessive. Nonetheless, there is a case for deterring people from making a vexatious complaint. Perhaps the way to do so is to give the commission a function equivalent to awarding costs so there is a small financial deterrent. In this case we are obviously talking about a complaint dismissed at the very start of the process, so we are not talking about significant costs. It seems reasonable to me that there be some deterrent.

The Ethics in Public Office Act, 1995, provides that the commission and committees should decide on the details of internal procedures in relation to complaints. Sections 22 and especially 32(6) specify a wide range of areas in which procedures should be determined. This is appropriate as only these bodies will develop an expertise over time in relation to the processing of complaints. Moreover, the Bill makes a number of additions to make the skeleton of the complaints procedure more explicit than heretofore. There is no explicit requirement for publication of the procedures, but it is expected that the commission or committee will make clear the procedures it intends to follow in a particular case. The current commission published its investigation procedures in its 1997 report. The Dáil Committee on Members' Interests published a memorandum on the procedures it followed during its investigation of the case of Deputy Foley.

As regards the issue of frivolous and vexatious cases, it is not appropriate to create an offence as the existence of such a provision might deter genuine complainants. There are already considerable new provisions designed as safeguards against frivolous and vexatious complaints and against those lacking substance, which is legally quite different. A person who makes a frivolous or vexatious complaint may have costs awarded against him or her, as I said on Committee Stage.

I was not clear that the costs were being awarded against somebody; I thought they were simply awarded to cover costs.

It can be either. Deputy McDowell raised this matter on Second Stage and I confirmed that I would deal with it on Committee Stage. Government amendments aimed at protecting those who make complaints from liability will not be applicable to frivolous and vexatious complaints. As regards the question of an appeals procedure, it should be noted that the committees and the commission will not set out penalties as their function is to assess facts and make recommendations. In the case of Members, it is the relevant House that will make the final determination. It is inappropriate that there should be a right of appeal against a decision of the House.

The commission's findings concerning public servants will be telling, but the decision in relation to any penalties will have to be taken within normal procedures. An appeal against the findings of the commission does not seem appropriate. It may be that Deputies will have in mind the situation regarding Electoral Acts, where the commission can make a report to the DPP about suspected offences. While any amendment to the Electoral Acts would be better dealt with in the Electoral (Amendment) Bill currently going through the Oireachtas, no penalty would be imposed unless the DPP decided to prosecute and the person was found guilty. It is a separate matter, in any event.

The Minister of State has clarified the position but nonetheless we are all aware that frivolous or vexatious complaints can be made which can do serious damage. The Tipperary South by-election campaign is ongoing and if a complaint against any candidate received publicity, the damage could be done in the ballot box to him or her before he or she had an opportunity to rebut it. Unless there is a rigorous sanction against the complainant in the form of a fine it is possible such complaints will be made for electoral rather than substantive reasons. That is a worry and the reason we tabled the amendment.

This is an important aspect of the legislation on which all of us enunciated our views on Second and Committee Stages. I hope the amendments that have been made will tighten the section and discourage frivolous and vexatious accusations. We all live in the real world and no matter how much legislation is enacted by us people will still see fit to take certain actions for whatever reason. However, the legislation is as tight as we can make it and I do not propose to go further at this stage. I cannot think of any legislation introduced in the history of the State that was deemed to be perfect on day one. One must wait in certain instances to ascertain how the issues covered by the legislation evolve and whether the legislation is working as intended. If not, we may revisit it.

Amendment, by leave withdrawn.

Acting Chairman:

Amendment No. 15 is related to amendment No. 14 and both may be discussed together.

I move amendment No. 14:

In page 9, line 24, after "complaint," to insert "or any other person whose evidence would or might, in the opinion of the officer, be relevant to the inquiry,".

This arises from a Committee Stage amendment tabled by Deputy McDowell. I indicated my agreement to the objective of his amendment and undertook to address the issue on Report Stage. The amendment will provide that an inquiry officer could seek evidence from whom he or she considered might be relevant to his or her inquiry. This provision will, therefore, mean in making his or her preliminary assessment an inquiry officer will not be confined to discussions with the complainant and the person against whom the complaint has been made. It broadens the remit of the officer somewhat but is in keeping with the purpose of having an effective screening process for complaints.

The Minister of State's amendment meets the issue I raised adequately. I am concerned that an obligation will be put on the inquiry officer to examine every source of information because, as the Minister of State rightly said, we do not broaden the scope of the legislation and place too much of a burden on the officer. That is the reason I tabled a provision that he or she should be allowed to carry out such investigations as were deemed necessary to decide whether a prima facie case exists. If the Minister of State is satisfied my point has been addressed, I am happy to concur with him. By giving the discretion to the officer we are allowing him or her to confine the investigation to what is absolutely necessary. I am happy to withdraw my amendment.

Amendment agreed to.
Amendments Nos. 15 and 16 not moved.

I move amendment No. 17:

In page 12, between lines 2 and 3, to insert the following:

"8.The Commission or a Committee shall not investigate a complaint made or referred to it unless the identity of the person making the complaint is disclosed to it. Where, having regard to all the circumstances, the Commission or a Committee considers it appropriate to do so, it may restrict the disclosure of such identity to those to whom knowledge of it is necessary or expedient for the purposes or by reason of the investigation of the complaint by the Commission or the Committee, as the case may be, or otherwise in the interests of justice.".

Amendment agreed to.

I move amendment No. 18:

In page 12, line 15, to delete "by counsel or solicitor".

The amendment addresses the issues of costs of persons appearing before the commission or a committee. Deputies Mitchell and McGrath dealt with this issue on Second Stage and asked that the legislation be improved in this respect. They were correct that the Bill was inadequate in that regard and in the light of their contributions I tabled an amendment on Committee Stage to provide for costs using the model of the relevant provisions of the tribunals legislation.

I inserted a new section 8 providing that where a committee or the commission considers that it is justified it can decide to award all or part of the costs of a person appearing by way of a solicitor or counsel. Deputy McDowell suggested that in some cases a person might require professional assistance of, say, an accountant rather than a solicitor or barrister. The amendment, therefore, deletes the reference to solicitors and barristers and, thus, allowing that an award of costs can address all appropriate costs even where the person concerned is not represented by a solicitor or barrister. I am grateful to the Deputies for their assistance in refining my thinking on the costs issue.

Amendment agreed to.

Acting Chairman:

Amendment No. 20 is an alternative to amendment No. 19 and amendment No. 21 is related. All may be discussed together.

I move amendment No. 19:

In page 12, line 35, to delete ", after consultation with the Commission,".

The amendment arises from a Committee Stage amendment tabled by Deputy McDowell. It requires the Minister for Finance, when drawing up codes of conduct for public officials and directors, to consult not only with the commission, but also with appropriate representatives of the people who will be subject to the code. Such consultation will take place in any event and the amendment copperfastens that in the legislation. A case in point is the consultation process under way in regard to the code of standards and behaviour for the Civil Service, which is before the Oireachtas Joint Committee on Finance and the Public Service and the subject of discussions with Civil Service staff interests through the conciliation and arbitration scheme for the Civil Service. I hope Deputy McDowell will withdraw his amendment in favour of mine.

The Minister of State has addressed the issue I raised. We would be doing very well if we could process legislation in such a conciliatory fashion all the time.

The Deputy knows my style.

The Minister of State has adequately met the point I raised on Committee Stage and I am happy to withdraw my amendment.

Amendment agreed to.
Amendment No. 20 not moved.

I move amendment No. 21:

In page 12, line 38, after "bodies" to insert "but before doing so shall consult with the Commission and such persons representative of those persons as he or she considers appropriate".

Amendment agreed to.

I move amendment No. 22:

In page 13, line 12, after "code" to insert "and shall, in respect of any query or challenge by a member of either House of the Oireachtas, in respect of any declaration made by another member, make it an offence to raise any such query or challenge publicly, except by way of a formal complaint to the Commission.".

The amendment relates to the nub of Deputy Mitchell's problem with the legislation. I refer again to the practical example of the upcoming by-election. Vexatious complaints carry much more status if they are made by a Member of either House of the Oireachtas and if an allegation is made in the House, the person making it has immunity. By the time the allegation is investigated by the commission and rebutted, severe damage can be done.

For example, a Member of this House, whom we would like to have seen severely punished, repeatedly made an allegation against Deputy Mitchell and even when it was investigated and established that there was no difficulty with what he had done and no need to take the issue any further, the Member continued to make the alle gation. Another Member with whom I was involved in a radio discussion raised the allegation again. He said Deputy Mitchell had not explained his position regarding the allegation and questioned whether there was still a shadow of doubt over him. This happened after the relevant legislation had been complied with and it was found Deputy Mitchell did not have a case to answer.

It is in that context that we are anxious that a sanction should be provided in the legislation against Members who would make similar allegations. It is a great honour to be a Member of this House and represent one's constituency but we are also under significant obligations. We must deal with our colleagues in a reasonable manner and one should not make allegations against a colleague that cannot be substantiated. One can do so in the House under privilege and there are minor sanctions if one cannot substantiate allegations that one makes.

However, the amendment would strengthen the legislation and provide redress for an aggrieved Member if he or she felt a colleague had wronged him or her. It provides a mechanism through which Members can make complaints to the commission.

That is the reason we tabled this amendment.

This is the jail Deputy Roche amendment which we discussed at great length on Committee Stage. I said at the time that to incarcerate Deputy Roche in the circumstances was probably a little harsh. It is, nonetheless, a subject worthy of thought. We have struck a balance in this House by requiring that people behave according to certain rules of honour and that if a person says something about a Member in the House which does not stand up, he or she can be disciplined internally. If one impugns the integrity of a Member outside the House, the only sanction against him or her is the defamation laws. However, as Deputy McGrath rightly pointed out, that is a long and tedious way of trying to vindicate one's good standing and name.

The proposition that we would look to restrict what people say outside the House about other Members, whether impugning their personal integrity or otherwise, and try to put in place a mechanism to censor them is too much for us to swallow. Although the current system and the defamation laws dealing with circumstances where people deliberately and vexatiously impugn someone else's integrity are imperfect, it would not be proper for us to attempt to censor and gag people in that way. Unfortunately, the cut and thrust of politics sometimes gets a bit out of hand, although it does not happen too often. It is too much to censor people in those circumstances outside what already exists in law.

The amendment proposed by Deputies Jim Mitchell and McGrath would require that codes of conduct for Members of either House contain a provision making it an offence to raise in public a query about or to challenge a Member's declaration of interests except by lodging a formal complaint with the commission. I indicated on Committee Stage that I was not in favour of legislation stipulating what should or should not be in a code of conduct for Members. The Government is providing in the Bill that the select committees of the Houses will draw up such codes which a House can then apply to itself by resolution. The Deputies will appreciate that constitutionally and otherwise it was right and proper that the Houses decide on their own codes of conduct. It would be a major departure if we went down this road. I am reluctant, therefore, to put into legislation anything which restricts the latitude of the Houses in regard to the content of their codes. I suggest the Deputy might raise the matter when the code comes before the House for discussion in due course.

I note that the report to the Committee on Members' Interests, which considered the code and made a number of inputs into this Bill, did not at any stage suggest such an offence. I have some doubts also about the appropriateness of a provision that would see an offence specified in a code of conduct. I would have thought that would not stand up to scrutiny. If an offence is required, and I am unconvinced, it would need to have been specified in the primary legislation. I appreciate where Deputy Jim Mitchell is coming from, but it is a bridge too far.

Amendment put and declared lost.
Amendment No. 23 not moved.

Amendment No. 24 is out of order.

Amendment No. 24 not moved.

I move amendment No. 25:

In page 15, between lines 37 and 38, to insert the following:

"12.–(1) The Commission shall, within 90 days of its establishment, publish a Draft Code on Reporting Standards in relation to–

(a) declarations under the Principal Act, the Act of 1997 or this Act, and

(f2>b) complaints regarding such declarations.

(2) On publication of the Draft Code on Reporting Standards the Commission shall invite comments thereon, and where it deems it appropriate, to enter into discussions with interested parties so that consultations are finalised within 90 days.

(3) Not later than 90 days following the completion of the consultation process the Commission shall publish in Iris Oifigiúil a Code on Reporting Standards in relation to declarations and in relation to complaints regarding declarations.

(4) A Code published under subsection (3) shall come into operation after 60 days have elapsed from the date of publication unless, in the meantime, the Code has been challenged in the courts.

(5) In the case of a challenge under subsection (4) the Code shall be amended to the extent ordained by the Court and then come into operation as soon as may be.

(6) When the Code comes into operation it shall have binding legal effect.

(7) A deliberate breach of the Code shall be an offence.".

The amendment is straightforward. It sets out certain standards and procedures which must be followed in relation to the draft code on reporting standards. We discussed this issue on Committee Stage and I would like to hear the Minister of State's response.

The Deputy proposes a new section requiring the commission to produce a code on reporting standards in relation to declarations under the ethics and electoral Acts and complaints about those declarations. The proposal can be summarised as follows: a draft code on reporting standards should be published within 90 days of the commencement of the Act; on publication, the commission should seek comments from interested parties within another 90 days; within a further 90 days a final code should be published which should take effect 60 days later unless challenged in court and a deliberate breach of this code on reporting standards will be an offence.

We gathered from Committee Stage that reporting standards here refer to journalists reporting matters concerned with ethics, declarations and complaints procedures. However, as tempting as the idea is in principle, I have some concerns about the fact that the Deputy's amendment will create a new offence of misreporting. Under the amendment proposed, if a journalist does not live up to the reporting standards laid down, he or she would be committing an offence. The motives behind such a proposal may be entirely worthy but, as I mentioned on Committee Stage, the proposal goes into territory which we have not considered for the purposes of this Bill. In effect, the commission would become the setter of standards for press reporting.

I also mentioned that the extension of this principle to other areas could easily lead to absurd consequences. The examples I gave were that we might have the Central Bank setting out standards for reporting of banking issues, the Garda Commissioner laying down the law on reporting of crime and so on. This would represent a new departure in press regulation. Such a departure would require detailed study and consideration, including the legal and constitutional aspects which cannot be achieved within the timescale for this Bill. I accept there are unique features of this new arrangement for investigations.

While I do not wish to accept this amendment today, the practical experience of the operation of the new commission and the committees may give rise to further thought on the matter. In the meantime, there are protections which would not apply, for example, in respect of an open hearing of a case in court. The commission and committees have discretion to hold their hearings in private and it will be an offence for any person who attends such a hearing to disclose information obtained at the hearing or under the Act generally. This combination gives the commission or committees considerable control over the dissemination of information arising from proceedings before them.

Amendment, by leave, withdrawn.

I move amendment No. 26:

In page 21, line 34, after "21” to insert “, 22”.

This is a drafting amendment to tidy up references in the Bill arising from Committee Stage amendments. A number of amendments were made on Committee Stage to sections of the Bill dealing with tax clearance certificates for various categories of person. For example, a new section was inserted to provide that candidates for judicial office would have to furnish a tax clearance certificate before appointment to the Bench. Section 24 sets out details of the tax clearance certificates for the purpose of the relevant sections of the Bill. The amendment is to ensure that all the relevant sections are properly referenced in section 24 of the Bill.

Amendment agreed to.

I move amendment No. 27:

In page 23, between lines 4 and 5, to insert the following:

"25.–If the Commission or the Revenue Commissioners shall at any time after the issue of a tax clearance certificate obtain information which suggests that inaccurate or incomplete information had been furnished to the Revenue Commissioners prior to the issue of a tax clearance certificate the Revenue may rescind such tax clearance certificate and shall notify the Commission that it has done so.".

This amendment deals with the circumstances where a tax clearance certificate is issued by the Revenue Commissioners in respect of a Member of the Houses and it subsequently transpires that the information given to the Revenue Commissioners to enable them to issue the certificate was either incomplete or inaccurate. This goes to the heart of what the tax clearance certificate is meant to do. The process signals to the House and beyond it that someone's tax affairs are not in order. There is no sanction for this and that position can continue for several years. It could continue for the course of the entire Dáil. If information becomes available to the Revenue Commissioners that someone got a tax clearance certificate but the information provided at the time was wrong or incomplete, the Revenue can revoke the clearance certificate. The clearance certificate is a type of nihil obstat, although I am not sure that is the right phrase; I am getting my clerical references mixed up. It basically states there is nothing wrong and that a person is above board and his or her tax affairs are in order.

Not quite. It is based on the information.

Yes. However, if it subsequently transpires that the individual's tax affairs are not in order, it logically follows that the Revenue should revoke or rescind the certificate.

This issue got a good airing on Committee Stage. Deputy McDowell is correct. Tax clearance certificates are required now for contractors who take on work for local authorities and so on. If they do not have the tax clearance certificate within a particular timeframe, they cannot get those contracts. There is a time lag in that regard. If it is subsequently found that the tax clearance certificate is not in order, there should be a mechanism whereby the commission can take the relevant measures. That is what is contained in this amendment, which I support.

We discussed this matter at some length and have actually gone further than what Deputy McDowell is suggesting in the amendment. Deputy McDowell's amendment would empower the Revenue Commissioners to rescind a tax clearance certificate where they consider that the certificate was based on false or incomplete information. We discussed this matter on Committee Stage. The important point to bear in mind is that a tax clearance certificate is simply a snapshot of a person's tax position. Moreover, it certifies only that the person has made returns required and that the tax he or she is paying is consistent with those returns. It is not to be taken as a statement from the Revenue that the person is fully tax compliant.

There is perhaps a misunderstanding about what is a tax clearance certificate. The tax clearance sections of the Bill are two-pronged for which there is a specific reason. A person has to produce both a certificate and a statutory declaration that his or her tax affairs are in order. The statutory declaration is far more significant in terms of the continuation of a person in a position. Allied to that is the significant increase in the penalties for making a false statutory declaration provided for in the Bill. That is significant.

To accept Deputy McDowell's amendment would be to potentially embroil the Revenue Commissioners in political controversy. I would be extremely uneasy about such a development; all Members of the House might be uneasy also. That could be seen to undermine the independence of the Revenue Commissioners, which would be disastrous. The tax clearance regime we are establishing in the Bill will be consistent with that pertaining to persons seeking licences and public contracts with the added extra, as I have just outlined, of the statutory declaration, which is most significant.

The existing tax clearance schemes for these categories do not provide for rescinding of a tax clearance certificate. Obviously, I cannot accept the Deputy's amendment based on what I said. If a person is found to have given incorrect information that would be a breach of tax law and a matter for the Revenue Commissioners to pursue, do we really want them reporting what is, in effect, an offence without having brought that offence through all the appropriate procedures?

Amendment, by leave, withdrawn.
Amendment No. 28 not moved.

I move amendment No. 29:

In page 28, between lines 12 and 13, (opposite "12" and in column 2), to insert the following:

"(1) In subsection (1)–

a)in paragraph (a), ‘section 4(1)(a) of the Act of 2001 and with' shall be inserted after ‘by them with', and

b)in paragraph (b), ‘the said section 4(1)(a) or' shall be inserted after 'any particular case, of'.”.

I am moving amendments Nos. 30 and 31 with amendment No. 29.

No. The Minister of State is moving amendment No. 29 on its own and then we will take amendments Nos. 30 and 31.

These two amendments tidy up amendments in the Bill to section 25 of the Ethics in Public Office Act, 1995, which concerns guidelines—

Which two amendments?

I am setting the context because—

An Leas-Cheann Comhairle: If the House is agreeable, we can take the three amendments together if they are related.

I think they are.

It is not obvious on the face of it what amendment No. 29 is about, but I am happy to take them together.

Is that agreeable to Deputy McGrath?

Yes, that is fine.

Amendment No. 29 is related as it provides similarly in relation to section 12 of the Ethics in Public Office Act in respect of advice and guidance from select committees. These two amendments tidy up amendments in the Bill to section 25 of the Ethics in Public Office Act which concerns guidelines and advice from the commission. The effect of the amendments is to provide that the commission can publish guidelines and give advice in relation to the wider remit given in the Bill.

Amendment agreed to.

I move amendment No. 30:

In page 32, to delete lines 17 and 18 and substitute the following:

"(a) in paragraph (a), ‘(other than members who are not office holders)' shall be inserted after ‘publish to persons', ‘section 4(1)(a) of the Act of 2001 or' shall be inserted after ‘to whom' and ‘that section and' shall be inserted after ‘by them with', and ”.

Amendment agreed to.

I move amendment No. 31:

In page 32, lines 19 and 20, to delete " (other than a member who is not an office holder) shall be deleted and".

Amendment agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Members on all sides of the House, in particular the spokespersons from the Fine Gael Party and the Labour Party, who put great time and effort into the passing of the Bill through all Stages. They were extremely helpful in bringing their experience to bear on the Bill and recognising the work of the committees also. We now have a good Bill which has been improved substantially since its publication. The effectiveness of the Standards in Public Office Bill will be all the better for it.

I hope Members find that when I bring legislation before the House, I actually listen to what people say and try to respond when sensible points are made or if something that we have missed is highlighted. I recognise that all Members of the House have the capacity to influence and improve legislation brought before the House. No font of wisdom resides in any one particular place.

I thank, in particular, my officials who gave me a lot of help and advice in drafting this legislation. They were very keen to see a good Standards in Public Office Bill brought forward that will stand the test of time, contribute to the improved standing of politicians, our Civil Service and everybody else, and create in the minds of the public the idea that we have a good, transparent and open system.

I genuinely thank all concerned, but particularly Deputies Mitchell, McGrath and McDowell for their efforts and attention to the Bill.

I am glad we have reached the stage where the Standards in Public Office has passed through Dáil Éireann. I thank the Minister of State for his co-operation over the period we were dealing with the Bill. He listened to what we said and either accepted many of the amendments or came forward with better amendments in place of them. Not all amendments will be accepted, but we appreciate the fact that the Minister of State listened to what we were saying. I thank him for that and the civil servants for their help.

It may be only a short time before the effects of the Bill come into force, and perhaps Members elected to the next Dáil will have to produce their tax clearance certificates. I hope everyone present will be in such a position that it will be required of them. I am sure they will be able to deal with it at that stage but, I hope, we will be in the position where we are asked to supply them.

The passage of this legislation has been interesting in so far as it has been around for a long time. To my knowledge, it went through the Members' interests committees of both Houses and was also discussed in draft form by way of Government proposals by the finance committee last year or the year before last; my memory is beginning to fail me at this stage. Certainly it has gone through a much longer than usual legislative process. In a sense, it is the type of legislation we would prefer not to introduce in the first place. Unfortunately, as I think all of us acknowledge, the standing of politicians and politics in Irish life has rarely, if ever, been lower and the least we can do is provide a mechanism which will allow us to mercilessly expose the very few rotten apples in the bunch. This legislation is one part of doing this.

I acknowledge what the Minster of State said in his concluding remarks. He has been particularly positive and forthcoming in accepting Opposition amendments, certainly amendments put forward by me, and I appreciate the generous way in which he has approached them.

I compliment the Minister of State and his officials. The Bill has been a long time in germination and now that it has got to the end of the process, let us hope we do not see much of this commission.

Question put and agreed to.