Seanad Éireann debate -
Friday, 14 Jul 1995

Vol. 144 No. 11

Ethics in Public Office Bill, 1994: Committee and Final Stages.

Sections 1 to 33, inclusive, agreed to.

SECTION 34.

Question proposed: "That section 34 stand part of the Bill."

Mr. Mooney

I oppose this section reluctantly. I ask the Minister to delete this section in its entirety. Overnight, I had occasion to reflect not only on the implications of section 34 and its wider consequence but also on the contributions that were made by our learned colleagues in the other House — specifically by Deputy Michael McDowell. I intend to echo some of the points made. Deputy McDowell specifically said:

I still have not heard an explanation from the Minister on how and in what circumstances a person's medical treatment which is rendered free or at a reduced rate could influence them in the way they behave in public office or as a Member of the House.

The Minister was silent throughout the entire debate, with particular reference to the £500 valuation, and offered no defence. I have to assume by her silence that she personally does not believe that this will in any way advance the cause of ethics in public office in this House or anywhere else.

Why should it be that a matter, which is normally within the remit of a doctor-client, lawyer-client or psychiatrist-client relationship, should now have to come into the public domain? I do not want to hear that it will not be publicised. It is a matter of fact, in relation to this section, that one will have to provide this information to another party, who will then hold it for 15 years in Leinster House. Why should a person who goes through any medical operation have to declare that interest in the House? Will the Minister please tell me what it has to do with ethics in public office?

The argument has been well teased out and far be it from me to be so naive as to expect that this is going to be accepted. The Minister is more familiar with this Bill than anybody. She has been involved from its conception and initiation and in the entire deliberation in the other House but, throughout it all, she remained silent in her defence of this particular issue, whereas she had an argument to make in all other areas. I know she responded to questions but, in general terms, the arguments put forward by a number of Deputies were not teased out in any way. Deputy McDowell requested twice of the Minister that the Government introduce an amendment in the Seanad to delete this section, and I have to agree with those sentiments. As an opening salvo, I ask the Minister to justify why this section is in the Bill.

Minister of State at the Department of Enterprise and Employment (Ms E. Fitzgerald)

Under the Second Schedule, Members are required to declare any gifts in cash or in kind worth over £500 which they receive. Senator Mooney possibly misunderstands the point of this section, which is to exempt the provision of details in relation to medical or legal services of a worth above the threshold limit which are received free of charge by a Member. The effect of the deletion Senator Mooney suggests would be to require Members to give full details of such gifts, and that is not the intention of this House, as I understood the debate yesterday and the remarks made by Senator Mooney today. I cannot possibly agree to the deletion because it would expose the very privacy concerns that Senator Mooney is concerned about.

Mr. Mooney

Perhaps we are at odds here. Why is there any reference at all to medical, legal and psychiatric services in the Bill? Section 34 deals with the retention of statements and matters concerning legal or medical services. Why is there any reference at all to those three areas?

Ms E. Fitzgerald

Section 34 (1) deals with something quite separate from that dealt with by section 34 (2). Section 34 (1) provides for the retention of statements and records of any information given to the Secretary to the Government for a period of 15 years to facilitate investigations of matters under the Bill. If a charge is made or an investigation is called for under the terms of the Bill, it is important that the records would be available over a reasonable period. That is the reason for the retention of the statements. That provision stands on its own.

The second subsection inserts a degree of privacy in exempting this from the blanket definition of free goods and services, as no identifying information shall be required where the free goods and services received by a Member take the form of medical or legal services. A simple statement that one has received medical or legal services is all that is required and I do not see that such a statement would form any breach of privacy.

The whole thrust of the Second Schedule is to ensure that there is a comprehensive declaration of interests. However, we recognise the privacy issues which concern Senator Mooney which is why we made this specific exemption in this section in relation to legal and medical services. The removal of this exemption would require a level of detail from Members which would be a severe and intrusive breach of privacy. This I would not like to see and I do not think that Senator Mooney would either.

Mr. Mooney

The Minister of State is not addressing the specific issue. I take her point in relation to section 34 (1). However, that subsection is only in the Bill because it is linked to section 34 (2). Section 34 is entitled "Retention of statements and matters concerning legal or medical services". Why is section 34 (1) not a separate section and why is it included with matters concerning legal or medical services? I did not ask about exemptions. I am asking why there is any reference in this legislation to legal or medical services. How does it advance ethics in public office to include references to medical or legal services? If the Minister of State wishes, I will outline in considerable detail the debate in the other House on the reasons this section should not be included and why there should be no reference to legal or medical services. She was silent on that issue then and she obviously intends to remain silent now.

I am not trying to obstruct this Bill but overnight a number of people, including Members of this House, conveyed to me that they are seriously concerned about the implications of this section. It is saying that if any Member of the Oireachtas, office holder or anybody else to whom the provisions of this Bill apply obtains legal, medical or psychiatric services to a value in excess of £500, they have to declare that fact. I fully understand that the Minister of State is saying she has included exemptions in order to minimise the whole question of privacy. However, why did she not remove it completely? She only did that in response to a strong school of protest in the other House in relation to the entire section. I understand most of the other aspects of the Bill but I do not understand this.

It seems that the reference in section 34 (1) to "a statement furnished under section 13, 14, 16, 17, 18, 19 or 29" applies not only to Members but to their spouses and families. Is it the case that if a spouse or family member of a Member has received medical, legal or psychiatric services that must also be a matter of record and included in a declaration of interests which will be held here for 15 years? That would be an intrusion of privacy and would have constitutional implications. Will the Minister of State tell me in simple, clear language how she understands this section to advance the concept of ethics in public office?

Ms E. Fitzgerald

The provisions of the Second Schedule are modelled on the provisions of similar registers of interests in other jurisdictions which provide for the disclosure of gifts in cash or kind given to parliamentarians. That is a basic building block of the Bill.

During the course of refining the Bill and preparing our Report Stage amendments, it was drawn to our attention that, inadvertently, this provision could require the disclosure of details in relation to medical, psychiatric or legal services, which would constitute an invasion of privacy. That is why we inserted subsection (2) into section 34. Section 34 (1) was a feature of the Bill from its initiation. We inserted subsection (2) to protect the privacy of Members and to ensure that no details would be required in respect of such gifts.

This provision is unlikely to create any difficulties in practice. The requirement only arises where a person receives free or discounted medical or legal services which exceed £500 in value. Where the person supplying the service is a friend or relative providing the service as a gift without any suggestion of trying to win influence or create an obligation, no disclosure of any kind is required. That will cover the situation. Too much has been made of this. A hypothetical argument is being made but I cannot anticipate that this section will cause any difficulty in practice. Its deletion, as proposed by Senator Mooney, would worsen the situation. We both wish to protect the privacy of Members and deleting this section would require Members, under the provisions of the Second Schedule, to disclose details of medical treatment.

Mr. Mooney

I am grateful to the Minister of State for attempting to elucidate and defend the indefensible. It is obvious that we are not going to be able to have a meeting of minds on this. My concern centres around the points I have already made. Fortunately, we in this country do not have the tabloid mentality. However, there are many instances in western democracies, particularly the United States, where a free, untrammelled press with access to information has interpreted that information in a way which has subsequently led to the political downfall of potential candidates for the Presidency and other public offices. Once this type of information goes into the public domain it is a very short step — not a quantum leap — for editors to interpret that information as they choose. That could have an adverse effect, not only on the individual office holder but, by implication, on his or her extended family, which is not fair.

I have no quibble with every other declaration required by this legislation, in common with the vast majority of people. Where money is involved and preference or privilege might be alleged it should be acknowledged publicly and declared. However, the specific areas of legal services, and particularly medical and psychiatric services, should be exempted. Once a Member or office holder makes a declaration that they received psychiatric or medial services to a value in excess of £500, although they do not have to go into detail, that information could, at some point in the future be misinterpreted. Remember that the freedom of information Bill, which will open up an entirely new vista, is imminent. That could have an adverse effect on an otherwise excellent candidate for public office or an office within our democratic institutions. For that reason, as much as any other, I argue against the entire principle of this section.

Mr. Manning

I followed the exchanges with interest. The Senator may have in mind the case of the former US Senator, Thomas Eagleton, whose candidacy for the presidency was greatly damaged by the disclosure that he had treatment for psychiatric problems. I am inclined to accept the Minister's argument because my understanding is that, if I had a serious psychiatric illness which required expensive treatment which I could not afford, if friends subscribed to the costs involved in my travelling to a clinic in the US and these costs exceeded £500, if I recovered and the matter was kept quiet — psychiatric illness is a matter people often wish, and are entitled, to keep private — if I reentered public life and I declared that friends subscribed the money to pay for my treatment, I should not have to indicate the type of treatment I received. The security of the information may be of concern to Senator Mooney and others. Will this information be made public?

Ms E. Fitzgerald

The nature of the statement by a person will be that he or she has received medical services. There will be no disclosure of whether these services were for physical or psychiatric reasons.

Mr. Manning

Is the Minister satisfied that details will be secure? Will they be released after 30 years as part of the release of State papers? Would it be an offence for the custodians of this information to leak or release it?

Ms E. Fitzgerald

Section 34 modifies paragraph 5 of the Second Schedule which requires a declaration of gifts which exceed £500 in value and which are not given for personal reasons. Gifts of free medical services would normally be given for personal reasons, for example because a person's cover under the VHI may have run out. This House and its select committee will draw up guidelines on the interpretation of the Bill which will apply to Members. We can have absolute protection for confidentiality. Section 34 (2) only provides that details must be furnished but no details will be put on record, other than that a person received medical services costing more than £500. There will be nothing on record to indicate whether the services were in respect of psychiatric or physical illness. In the vast majority of cases, such gifts will be given for purely personal reasons related to the health status of the individual.

Under Article 15.10 of the Constitution each House of the Oireachtas has the power to make its own rules. Under Part II this House has the power to draw up guidelines for Members on the interpretation of the Bill and the detail of the statements required under it. The House will be able to ensure that the disclosure requirements will be absolutely minimal.

Mr. Manning

Like Senator Mooney, I do not particularly like this section but I understand the reason for it and am satisfied with what the Minister said about safeguards and protections. We should make it clear, as did the other House, that, if there is the slightest danger of the tabloid type approach being taken and resulting in an invasion of privacy, immediate steps should be taken to close any loopholes which might exist. I am not enthusiastic about this section but I am satisfied with the Minister's explanation.

Mr. Mooney

Is the Minister saying there will be public disclosure but that it will only be in the form of a general statement that medical services were obtained?

Ms E. Fitzgerald

That would only arise where the gift of medical services was not given for purely personal reasons, for example, where it was given in an attempt to influence a person in the course of his or her functions. The section is of extremely narrow application and its purpose is to deal with an unintended side effect of paragraph (5) of the Second Schedule which, in calling for a comprehensive disclosure of gifts to parliamentarians, would inadvertently require a high level of detail on medical treatment given free of charge but not for purely personal reasons. Section 34 (2) was inserted on Report Stage in the Dáil to modify the Second Schedule to protect privacy.

Mr. Manning

If my local golf club runs a quiz night and a few other functions to pay for my medical treatment, this does not have to be disclosed. If friends and neighbours raise £1,000 or £2,000, which will not influence anything I will do as a parliamentarian and will not result in any gain for them, this does not have to be disclosed. If my former corporation is touched by my plight or if it thinks I am a great asset to the nation or could be of some value to them in being able to influence legislation and it makes a contribution, this must be declared. Is this the position?

Ms E. Fitzgerald

That is a succinct description of the position. Gifts which are given for purely personal reasons are not required to be disclosed under the terms of the Second Schedule.

Mr. Mooney

Senator Manning kindly put forward possible scenarios. We are all aware that a significant sum of money was raised for a Member of the other House. Would that person be exempt from rendering a declaration to the committee?

Ms E. Fitzgerald

The end of paragraph (5) of the Second Schedule elucidates the position. It refers to:

...other than property supplied or lent or a service supplied to a person by a relative or friend of the person...where such supply or loan was in the nature of a gift to the person and for personal reasons only unless the acceptance of the property or loan or the service by the person could have materially influenced him or her in the performance of his or her functions as a member, office holder, Attorney General...

If somebody's friends organise for personal reasons to pay for his or her medical treatment, they are not trying to influence that person in the performance of his or her functions and this would be exempt. The guidelines which will be drawn up by the select committee of the House will elaborate on this. The Bill is complex and its drafting took a long time because we were at pains to strike a balance between respecting legitimate rights to personal privacy and dealing with the public interest in disclosure. We have been careful to steer this line to the point of inserting this provision because we felt something we did not want covered could be covered inadvertently.

Mr. Mooney

I am grateful to the Minister. If the Seanad were to serve no other function than to tease out the nuances of sections such as this, it is serving a useful purpose. I do not wish to cast any aspersions, good, bad or indifferent, on our colleagues in the other House, but while they addressed important issues, there was a gap in the debate on the implications of this section. I fully understood, when opposing this section, the distinction between section 34 (1) and (2), but because one is consequent on the other — the Minister does not totally agree with this — in its application, section 34 (1) is conditional on section 34 (2). I looked for the deletion of the entire section.

I accept the Minister's bona fides in this matter and am grateful to Senator Manning for having assisted in clarifying it. However, I am concerned with public disclosure in the media as it relates to this section. I have no sympathy for anybody who came under scrutiny under any other part of this Bill because of failing to adhere to it since most of it relates to money, gifts and property but this section concerns the physical well being of a person. Notwithstanding the safeguards built into the personal nature of the service, the mere fact that any Member or officeholder applied for medical service is in itself a news story, depending on the position of the individual concerned. While I accept the Minister's bona fides that this information will be jealously guarded and only released in the public interest, she and I can only legislate for now; we cannot legislate for the future.

A large corporation may be altruistic in their approach to a specific case involving a substantial amount of money. The Minister is amused by that——

Ms E. Fitzgerald

I hope RTÉ will want to see the Senator continue to be in good voice.

Mr. Mooney

The mere fact they made the contribution — it is included as a statement of interest in the section — could be misinterpreted. A company might back off if it is to be subjected to this sort of media focus because it made a private agreement with a person, who may be a potential officeholder or a Minister. No one has a monopoly on good health. This legislation may not apply when a person received the gift from the corporation but he would have to declare it when it became relevant. That company may have had a reason, other than commercial, for providing the wherewithal.

In the context of the Minister's remarks on the guidelines, I ask that the committee of the House will pay particular attention to the implications of section 34 as it affects the media interpretation of these events. However, I am grateful to the Minister for her time and patience on this matter.

Question put and agreed to.

Sections 35 to 38, inclusive, agreed to.

First Schedule agreed to.

Second Schedule agreed to.

Title agreed to.

Bill reported without amendments and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Manning

The passage of this Bill has been a long and arduous process for the Minister. She could now submit for a Ph.D. in politics or public affairs in any of our universities on the basis of the work and research she has done.

When does the Minister expect the Bill to be implemented? The Bill says it will come in by order. Is that correct? Does she have any idea of the timescale involved? Section 12 states the committees of each House will work with the commission in drawing up the guidelines. There has been a long and good debate on this matter in the other House. Many misapprehensions were cleared away and the defensiveness experienced by many of us has, in some cases, proved to be unnecessary. However, a debate that goes on too long can make people more confused. In the other House, the Bill went through many permutations, combinations and changes on which many of us, who read it initially and did not keep in touch with its changing nature, may not be clear. Proper guidelines are crucial. There should be no lack of clarity as to the procedures and what is and is not permissible. When these committees are set up after the Bill comes into effect, I hope expert help will be available to ensure there is clarity in this regard and that we do not find ourselves ending up in disputes because there is some ambiguity in the law.

Mr. Mooney

I agree with Senator Manning. It is a timely intervention. I am not sure if it is within the Minister's scope, but in the context of the membership of this House and because of the changing nature of this Bill, it would help if Members were aware of the current position of the Bill. This would be helpful when the time comes for the various House committees to give assistance to the commission. The guidelines and its operations are a debate for another day, but maybe this could be examined in the short to medium term. The Minister may tell us it is our job but it would help if her Department would do this.

Minister of State at the Department of Enterprise and Employment (Ms E. Fitzgerald)

The commencement of the Bill is a matter for each House. Under Article 15.10 of the Constitution, each House regulates its own affairs; it is for each House to decide when to bring section 34 (2) into force. Once that is done, the House establishes its select committee which, in consultation with the commission, will draw up guidelines.

My office, which Senator Manning said could now write a Ph.D on this Bill, will be pleased to give any backup or support any Member requires. We have prepared a rough and simple guide for Members. We will return to this after the Bill is passed and enacted and arrange to put it at the disposal of Members. People are entitled to know where they stand. A select committee of this House, in consultation with the commission, will draw up the guidelines for Ministers and the wider public service. This is provided for under the Bill. We do not want different interpretations of the same provisions. Therefore, this House will be involved in drawing up the guidelines.

When Part II of the Bill is enacted by resolution of this House, it will be 90 days before the register is published. The registration date is 30 days after the date of the resolution to bring the Bill into force. There are 30 days after the registration date for Members to make statements and a further 30 days for the statements to be included in the published register. If a Member inadvertently makes a mistake, there is a provision in the Bill for voluntary disclosures which will be inserted in the register.

My office has developed great expertise as regards this Bill during its two years gestation. We will make every facility available to Members in case they have difficulties or want advice or assistance. That will be available to a select committee of this House.

This is important legislation which represents a landmark for Members. The Houses of the Oireachtas have decided to formalise a register of interests which will be published. That is a step forward for democracy, but we must assist Members in bringing that process to a conclusion. We hope that each House will be in a position in the autumn to bring this legislation into effect. As I said, we will give Members any backup or support they require.

This has been a long and interesting process. I pay tribute to the Members of both Houses who have contributed to the debate. I thank Senator Mooney for his intervention which helped to clarify the provisions in section 34. It was helpful for this House to have such a constructive and positive debate yesterday. I pay tribute to my officials who have been of such great assistance in this regard that the Department of Defence has snaffled some of them. One of our officials has been promoted and I am glad his ability has been recognised. This legislation is the result of a team effort in my office and in the Houses of the Oireachtas.

While Ministers are always impatient to see a Bill on which they have laboured for long hours pass its Final Stage, this Bill has been immensely improved by the quality of the debate. It is the most carefully considered legislation which the Houses have adopted for many years. I hope it will strengthen the foundations of our democracy, increase our trust in the political and administrative systems and copperfasten the fact that those in public life are motivated by a duty to public service.

Mr. Manning

I congratulate the Minister on getting her first major legislation through both Houses. Although it has taken longer than other legislation, it is a significant landmark. It has been a learning process for the Minister and for Members. This legislation is in the interests of all Members of this House. I am 14 years in the Houses of the Oireachtas and I believe we are protected by such declarations. The overwhelming majority of Members feel protected by openly disclosing their interests.

I compliment the Minister on this Bill. She is entitled to open a bottle of champagne for her staff and some of us may join her. They have worked long and hard and they have shown a lot of expertise in this regard. Although this legislation is not perfect — parts of it are probably wrong — we will be able to correct it at a later date.

Mr. Mooney

I endorse Senator Manning's remarks. I will not rain on the Minister's parade during her moment of glory. The Minister and her staff must be satisfied to have drafted the heads of this Bill and to have put it through two Cabinets and a rigorous examination by her peers. Unlike other legislation, this Bill impacts on Members. As Senator Manning said, this has been a learning process for the Minister who has grown in the job. I am sure she would be the first to recognise that the experience in both Houses as a Minister has helped her to mature politically. It has always been a pleasure to work with her in this and other fora. As Senator Manning said, the Bill may not be perfect, but we are the watchdogs of this legislation which will be continually monitored.

Question put and agreed to.

An Cathaoirleach

When is it proposed to sit again?

Mr. Manning

It is proposed to sit at 11.30 a.m. on Wednesday, 19 July 1995.

The House adjourned at 2.50 p.m. until 11.30 a.m. on Wednesday, 19 July 1995.