Standards in Public Office Bill, 2000: Committee Stage.
Sections 1 to 5, inclusive, agreed to.
I move amendment No. 1:
In page 9, before section 6, to insert the following new section:
"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.”.
Yesterday we discussed at length the difficulty relating to vexatious complaints. I tabled the amendment so that we could do likewise today. Vexatious and frivolous complaints can damage a person's name. Senator Cosgrave referred to the allegations made against the Taoiseach recently. They received much publicity in one Sunday newspaper, which listed details such as the amount involved, the place where the transaction took place and the time and date of the transaction. Fortunately, the Taoiseach had an opportunity to deny the allegations on the evening in question.
However, if the complaint had been made to an inquiry officer or to the commission, the reputation of the person against whom it was made would have been damaged because the allegations appeared to have substance. As we now know, they were a ball of smoke and there was no substance to them. When allegations are made against a Member it affects his or her character and good name, even though the inquiry officer or the commission might reject them.
The only asset a Member has is his or her good name. The Minister of State stated that guarantees are provided in the Ethics in Public Office Act, 1996, against such complaints but I would like further reassurance on this issue because I am concerned about this aspect of the legislation.
I spoke on this matter on a number of occasions and I made a number of contributions on it at the Joint Committee on Finance and the Public Service. I have also taken cognisance of legislation in this area which has been implemented in Canada and elsewhere. We must provide adequate safeguards so that vexatious accusations cannot be made which can then be withdrawn when damage has been inflicted.
For example, a serious allegation was made against the Taoiseach. It was alleged that a sum of £50,000 was handed over in a car park in a Dublin hotel. This week it emerged there was no substance whatsoever to the allegation because it was withdrawn. If such an allegation had been made against a person of lesser standing I have no doubt he or she would not be involved in public life today. Due to the perseverance of the Taoiseach and his ability to stand up to such allegations, he saw off the challenge and the allegation was withdrawn.
This is an important issue. As an Oireachtas Member and a member of a Government party, I fully support the legislation and compliment the Government on having the courage to bring it forward. However, an opportunity must not be provided to individuals to make an allegation against a candidate during an election campaign, for political reasons or otherwise, because the candidate's credibility will be undermined and his or her position in the eyes of the electorate will be damaged even if the allegation is withdrawn at a later stage. If an individual makes a frivolous or vexatious complaint, he or she should be penalised. If he or she has a genuine case and is making it in the common good, he or she has a duty to expose wrongdoing. To undermine a person's character by taking an electoral swipe at him or her is dangerous and anyone who does so should be severely punished. The Minister of State might reassure me and the Members of this House that people of such mind will not be given that opportunity.
As regards procedures, the ethics Act already provides that the commission and committees should decide on the details of their internal procedures in relation to complaints. The relevant provisions of the Ethics in Public Office Act, 1995, already specify a wide range of areas in which they should determine such procedures. This seems appropriate since it is only these bodies which will over time develop an expertise in relation to the processing of these complaints. Moreover, the Bill makes a number of additions which make the skeleton of the complaints procedures more explicit than heretofore. There is no explicit requirement for publication of these procedures, but one would expect the commission or a committee to make clear the procedures it intends to follow in any case. The current commission published its investigation procedure in its report for 1997. The Dáil Select 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 would not appear appropriate to create an offence. The existence of the offence provision might deter genuine complainants. There are already considerable new provisions designed as safeguards against frivolous and vexatious complaints. Those which lack substance are different in law. A person who makes a frivolous or vexatious complaint may have costs awarded against him or her. That is a significant element of this Bill. Anyone making a frivolous or vexatious complaint or a false accusation should be aware that they could have the costs awarded against them. Government amendments aimed at protecting persons who make complaints from liability will not be applicable to anyone who makes a frivolous or vexatious complaint or a complaint which they know to be false in the first instance. The protective procedures for normal complainants do not apply in the context of vexatious or frivolous complaints.
As regards the question of an appeals procedure, it should be noted that committees and the commission will not set out penalties. Their function is to assess facts and make recommendations. In the case of Members, the Houses of the Oireachtas will make the final determination. It seems inappropriate there should be a right of appeal against a decision of the House. As regards public servants, the commission's findings will be telling, but the decision in relation to any penalties, etc. must be taken within the normal procedures. An appeal against the commission's finding does not seem to be appropriate. It may be that the Senator has in mind the situation in relation to the electoral Acts where the commission can make a report to the DPP about any suspected offence. A penalty would not be imposed unless the DPP decided to prosecute and the person was found guilty in court with all the standard appeals. Any decision of a body, such as the commission, is open to judicial review in the normal course of events.
I meant to move an amendment to section 2 to deal with a typographical error, but will do so on Report Stage.
If costs are awarded against someone who makes an unsubstantiated complaint, will the commission award them or does the person concerned have to go to the civil court to get them? If the commission receives a complaint and comes to the conclusion there is no substance to it, can an individual find out under the Freedom of Information Act that the commission is examining it and thereby get the person's name released? Perhaps the Minister of State could clarify that because it is important. The commission should be allowed to examine a complaint in private before any public decision is made on it.
The Senator is right. Information about an investigation of any matter before the commission would not be releasable under the Freedom of Information Act while the matter is being assessed. Unlike previous Bills where we strengthened this area, it will be open to the commission to dismiss automatically a complaint which it believes to be frivolous or vexatious without any investigation. It also has the ability under this Bill to appoint an inquiry officer who can make a quick preliminary investigation if it has doubts about it. That could also lead to a dismissal of the complaint. There are ways in which to protect it. I do not want to intervene in the procedures of the committees of the Seanad and the Dáil. It is a matter for each House to set its own procedures. As I highlighted, in cases where there have been investigations, the committee has set out the procedures which have been adopted. That was satisfactory to all members involved.
What about the awarding of costs?
The costs will be awarded by the commission.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."
This is an important section because it proposes to appoint an important person, the inquiry officer, who will have a wide range of functions in assisting the commission in examining the type of complaints about which we are talking. He or she will then decide whether there is a prima facie case to be made and report to the commission. What qualifications will the inquiry officer have? Will he or she have legal experience?
The Senator is right when he says the inquiry officer is an important person. It is an important element in the process and will be significantly important in the context of this Bill. It is open to the commission to appoint a person, given the context of the complaint. It could be a member of the staff of the commission, a solicitor or an accountant, but it must be someone of standing. I have confidence the commission will follow what it would deem to be appropriately necessary in that context. I do not have any concerns in that regard.
Question put and agreed to.
Question proposed: "That section 7 stand part of the Bill."
The complexity of this section may have misled me. Section 7 is an amendment to section 23(1) of the principal Act. It refers to paragraphs which are not in the amendment but which are in the principal Act. I am, therefore, at a loss. Paragraph (1B) states that the "Commission shall not investigate a complaint by a person other than a member or a person referred to in paragraph (c) or (d) of section 22(4) if it considers the complaint to be frivolous or vexatious.” It is possible to interpret that paragraph as meaning only a vexatious complaint made by “a person other than a member or a person referred to in paragraph (c) or (d)”. It leaves open the possibility of a frivolous or vexatious complaint being made by persons other than “a person other than a member or a person referred to in paragraph (c) or (d)”. I find the language extremely confusing. I hope the Minister of State can clarify what this paragraph means.
When the Senator raised this issue, I was not sure I was looking at the same Bill. The commission can drop a complaint at any time, irrespective of where it comes from. That has been strengthened in this Bill to make sure that we can deal quickly with what could overtly be described in the first instance as an obvious vexatious or frivolous allegation. That has been welcomed by everybody in both Houses.
It is not that I do not welcome the attempts to deal with the question of frivolous or vexatious complaints because I believe they will be a significant part of the commission's work. Any of us who have had the misfortune to talk to the people who parade outside this House will realise that a large number of people have a conviction of the level of conspiracy that is taking place against them as individuals and they will submit enough documentation to the commission to keep it going for the next five years, if it does not quickly realise that many of these complaints are frivolous. I accept that it is not intended but I register my internal protest that I believe legislation can be written in simple English, and this is not a good example of that.
I am guided by the parliamentary counsel, as the Senator can appreciate.
It was explained to me that the problem is that lawyers' clerks used to be paid by the number of words they wrote and therefore, by definition, legislation was made long and wordy. We have moved on from that and we should remind those who take the place of lawyers' clerks in the parliamentary counsel's office that we would like and are entitled to simple English. American legislation, for example – it is a very litigious country – is comprehensible. Ours often is not.
Question put and agreed to.
Question proposed: "That section 8 stand part of the Bill."
How extensive is the preservation of the anonymity of the person making a complaint? How widely used is that in other investigations? As far as I am aware it is not possible to make a complaint through a tribunal of inquiry without the identity of the person making the complaint being known, but in this case there is no obligation on the part of the commission, though it may do so if it wishes, or a committee to tell a person who is making the complaint about them. Is that a common practice? I do not know that it is. I know it is not the practice in tribunals of inquiry.
I will make one point before I answer the Senator directly. He will be aware that in the context of this Bill I do not intend to accept anonymous complaints, which is welcomed by everybody. Certain special circumstances may arise, but by and large that is the case. That is something we all want because many accusations made in writing are anonymous and if people are not accountable for making the complaint in the first place, the complaint should not be treated seriously.
The issue the Senator raised with regard to protecting the identity of the person concerned is a good one. It is not a general provision but it is one we have included in the Bill. The Bill does not refer only to politicians. It refers to the structure within the public service and one can think of many examples where it might be difficult for a person to make a complaint about somebody. They could be working close to the person, he or she could be their immediate boss etc. and they might feel some serious wrongdoing had occurred. In the context of the procedures involved, the protection of the complainant's identity is important. In conjunction with the legislation my colleague, the Minister of State, Deputy Kitt, is preparing the whistleblower's charter – we are trying to protect people where necessary. There are instances in which it would be important that the identity is not known, yet it is not an anonymous complaint. If needs be, the identity of the person who made the complaint can be established.
I do not want to delay the House unnecessarily. I do not dispute the principle outlined by the Minister of State. Some circumstances may arise although we have not allowed that privilege to anybody who wished to make a complaint to any of the tribunals of inquiry. A considerable number of the people who made those complaints might feel vulnerable or at risk. Employees of certain builders who shall be nameless and associates of certain politicians who shall be nameless were not and could not be given any assurance that their identities would be withheld, even temporarily. It is far too late in the session to deal with it now, but it would have been better to include a statement of principle to the effect that the identity of a complainant would be made known but that exceptional circumstances could arise, rather than the situation where the commission considers it appropriate to do so.
The section states: ". 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 ." That is giving considerable latitude without proper guidelines and I suspect, although I may be wrong, that it might result in trouble in the courts. I am sure the Attorney General has said it is appropriate, but I have had many disagreements with the Attorney General and believe he is wrong about many matters, so I do not have a problem in thinking he might be wrong about this also. I would have preferred a statement of principle that the identity would be a matter of record, particularly in regard to the person about whom the complaint is being made.
I may have misled the Senator somewhat in the way I replied to the two issues. The Labour Party tabled an amendment which—
The Minister of State should not start quoting my own party back to me.
No, it is very positive. The amendment was to the effect that the identity of the person would be made known to the subject of the complaint. That is the case.
Did I miss it in the Bill?
Natural justice would require that and the commission will have to abide by natural justice, but the commission can decide not to make it known to a wider group of parties. I may have misled the Senator in the way I put that to him earlier, and I do not want to do that.
So it is in the Bill and I missed it?
It is, yes. The person who is the subject of the complaint and the identity of the complainant will be made known to that person.
Question put and agreed to.
Question proposed: "That section 9 stand part of the Bill."
I want to come back to what the Minister of State said earlier about the awarding of costs. A considerable amount of the litigation in which the State is sued results in the awarding of costs, in many cases against the complainant. In many of those cases, however, the complainant turns out to have only a basic income and to own no property. There is not a remote possibility, therefore, in any decent society of ever recouping the costs because the complainant would be totally impoverished, destitute and homeless. In most cases the State does not seek to recoup costs. Many of the professional complainers I know are in the category of people who are on limited incomes and I wonder if we are leaving the issue of costs too open. I do not want to revisit Senator Doyle's amendment but an issue arises in this regard.
I take the Senator's point, but these issues become very subjective. I tried to strike a balance in this area. This matter arose during debate in the Dáil and I tabled an amendment on Committee Stage to try to achieve a better balance. I have done so and we will see how the Bill operates in practice.
Question put and agreed to.
Question proposed: "That section 10 stand part of the Bill."
How many codes of conduct will there be? Section 10(1) states, "A Committee shall, after consultation with the Commission, from time to time draw up codes of conduct for the guidance of members (other than office holders) of the House concerned." Like others, I spoke about many of these issues 15 years ago, and welcome this Bill. However, everyone knows of the plethora of form filling which has descended upon us because of these issues.
It is tempting to introduce codes of conduct because they are easily amended and can be tampered with. I have a vision of committees in a state of perpetual revision as they learn more, or as new political controversies arise. There ought to be a timescale for codes of conduct. There should also be only one comprehensive code which cannot be amended on an ad hoc basis.
The Senator is correct. Legislation introduced in recent years, including this Bill, places a heavy burden on Members. We would all be happy if this was unnecessary, but the world in which we live is different from that of the past. The public expects us to put in place, in an open and transparent manner, systems which ensure all Members are honest and act with integrity in carrying out their duties. Codes of conduct and practice are set down to ensure Members, and public servants, have guidelines which they must follow.
Senator Ryan is correct. The various forms which Members have to fill out tend to come on different dates, require one to go to different places at different times and so on. The Bill provides for a streamlining of this process whereby separate forms will issue together, be filled in at the same time and returned to the same place. This will significantly simplify matters. This issue was raised in the Dáil and I thought it wise and fair to introduce such a provision. We have moved to reduce the burden somewhat.
There is considerable legislation which deals with much the same subject. Has the Minister of State considered codifying this legislation into one simple Bill at some stage in the future? Senator Ryan referred to the American system. Such an approach would ensure people are familiar with the rules and regulations. This cannot be done immediately, but it should be considered for some future date.
I agree with the Senator in principle and the Government has moved to consolidate much legislation. I was directly involved with the taxes consolidation legislation some time ago which was speedily passed by both Houses. The Senator's point is correct in principle and there is no objection to it. I am sure much of this legislation will be codified and consolidated, where possible, into one Bill at some stage in the future.
Question put and agreed to.
Sections 11 to 15, inclusive, agreed to.
Question proposed: "That section 16 stand part of the Bill."
I am seeking clarification. This section concerns the admissibility of evidence. Section 16 (1) states:
Notwithstanding subsection (8) of section 32 of the Principal Act–
(a) a person who gives evidence before a Committee or the Commission or to a person for the purposes of an examination by him or her pursuant to subsection (4A) of that section shall not be entitled to refuse to answer any question put to him or her, and
(b) a person shall not be entitled to refuse to produce or send a document pursuant to a direction,
on the ground that his or her answer or the document might incriminate him or her.
This is an awesome power. Given the number of people who come under the aegis of this provision, it is a considerable power to compel witnesses to say things which might incriminate them. I assume the Minister of State is satisfied this provision is consistent with constitutional principles.
I am satisfied in that regard.
Question put and agreed to.
Question proposed: "That section 17 stand part of the Bill."
Section 17 states, "A person who by act or omission obstructs or hinders a Committee, the Commission, an inquiry officer or a person..shall be guilty of an offence.." I assume such an offence would have to be prosecuted in a court of law.
The normal procedures of law are not removed by the introduction of legislation such as this. Normal procedures follow in this regard.
Does the Minister of State have a note on section 17, particularly regarding an offence under the section?
Sections 17, 18 and 19 provide the commission and select committees with strong powers to ensure they are adequately equipped to carry out investigations. Section 17 makes it an offence to obstruct an examination by the commission, a select committee on Members' interests or an inquiry officer. The penalties which apply to such an offence on summary conviction are a fine not exceeding £1,000 or a term of imprisonment not exceeding six months. The penalties on conviction on indictment are a fine of £20,000 or a term of imprisonment not exceeding three years.
Where an offence is committed by a body corporate and proved to have been so committed with the consent or connivance of, or to be attributable to, any neglect on the part of any director, manager or secretary of the body, that person, as well as the body corporate, will be guilty of an offence. This is a standard provision binding directors and officers of a company, where appropriate, with offences committed by that company.
Question put and agreed to.
Question proposed: "That section 18 stand part of the Bill."
Are the powers being given to the commission, a committee, or the chairperson of the commission identical to those available to a tribunal?
The powers are in accordance with the High Court's discovery rules.
Question put and agreed to.
Sections 19 and 20 agreed to.
Question proposed: "That section 21 stand part of the Bill."
I raise this matter in a reasonably bland manner. The Information Commissioner complains he is under-resourced and cannot deal with matters within the desired timeframe. The Ombudsman, who is the same person, makes a similar point. How will we be guaranteed that the Revenue authorities or the Paymaster General will have the resources to provide the necessary certification within the allotted timeframe?
There is no ring-fencing or staffing to ensure this will be done. It is a very serious obligation and a correct one with which I have no dispute. It may come as a shock to many people because I suspect that 80% of people do not make tax returns. Only those of us who are regarded as being in suspect professions are required to do so with some diligence.
It would have been useful to insert in the Bill an obligation on the various statutory bodies to do this within the required timeframe. How are we to ensure that this occurs? As well as imposing an obligation on individuals to do it, there should be an obligation to deal with this matter speedily. Members of both Houses are vulnerable to indolence in other places.
This will be a very public demonstration and I do not doubt that Members of both Houses will make sure their tax affairs are in order and will certainly require the Revenue Commissioners to produce a tax clearance certificate. If the Revenue Commissioners, for whatever reason, find they are unable, because of staffing constraints or whatever, to deal with these issues, I am sure they will seek extra resources. I have had no indication, however, that there will be any extra requirement by the Revenue on the basis of this section.
More powerful than the tax clearance certificate requirement is that individual Members will have to sign a statutory declaration.
In terms of a person's income, a tax clearance certificate can be correct on the day it is issued but can be incorrect the following day. The statutory declaration that Members will make will have far more weight and consequence.
Question put and agreed to.
Sections 22 to 26, inclusive, agreed to.
Question proposed: "That section 27 stand part of the Bill."
I wish to record my view, as I do whenever this matter arises, that the section is unconstitutional. The idea that legislation proves difficult and, therefore, the Minister may by regulation do anything which appears to be necessary to bring the Act into operation. is a gross extension of the role of secondary legislation. It is quite unconstitutional and this is not the first time I have raised the matter. I am not going to make an issue of it but the idea that because legislation proves difficult, the Minister can, de facto, rewrite it, is not right. It will end up in the Supreme Court where it will be ruled unconstitutional, as happened on previous occasions when Ministers took too many liberties with secondary legislation.
I do not accept that view and obviously it is not in the Bill.
It is a standard provision. The balancing side of the argument is that one could not do anything under this section unless it was constitutionally correct. Therefore, one could not use the section to do something unconstitutional.
Question put and declared carried.
Section 28 agreed to.
Question proposed: "That section 29 stand part of the Bill."
Among other things, section 29 deals with commencement but it is a strange form of commencement and quite unusual in my fairly extensive, but patchy, memory of legislation. It states that "subject to paragraph (b) the Act shall not come into operation until such day as the Government appoints by order.” That wording is fine because it is standard, but paragraph (b) states that “paragraph (a) does not apply to this Act in so far as it applies to either House, or Members, or the Clerk of either House, or committees, or other Members”. It is, therefore, only with the approval of the Houses that the rest of it can come into operation.
Will the Minister explain why this is necessary? I would have thought that this is the sort of legislation that could come into force on an appointed date, say a month or two after enactment.
I have been careful throughout the Bill to recognise the primacy of the Houses. The main work put into the Bill in its germination period took place in the joint committee which made an enormous, wise and fair contribution to difficult legislation concerning ourselves. We always recognise the primacy of the Houses to do that and this is carried through into the legislation. I would be astonished if the Houses did not move on the Bill immediately it is enacted, and I have no doubt that they will.
Question put and agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take the next Stage?
Agreed to take Report Stage now.