Vol. 4 No. 8
I welcome the Minister of State at the Department of Finance, Deputy Cullen, and his officials. I propose that we consider the Bill until 10 p.m. and if we have not concluded by then a further meeting has been provisionally arranged for Friday, 22 June at 11 a.m. Is that agreed? Agreed. We will take a sos midway through this meeting.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (1), lines 28 and 29, to delete "section 22(5)” and substitute “section 22(4)”.
Amendment No. 2 is consequential on amendments Nos. 42 to 44, inclusive, while amendments Nos. 47 to 50, inclusive, are related. All may be taken together by agreement.
Could I have a copy of the amendment groupings?
Yes, they are being circulated.
I move amendment No. 2:
In page 4, subsection (1), to delete lines 6 to 10.
Section 20 provides that judges must furnish tax clearance certificates following appointment. The Attorney General has advised that, while this is not unconstitutional, it may be an undesirable approach since there would be a lack of clarity about the consequences of a failure by an appointed judge to produce a certificate, etc. The Government, accordingly, proposes to provide that candidates for judicial posts will provide the Judiciary Appointments Advisory Board established under the Courts and Court Officers Act, 1995, with a tax clearance certificate and a statutory declaration before being recommended to the Government for appointment.
The JAAB will not be able to recommend a person to the Government for appointment as a judge unless he or she has furnished the board with a tax clearance certificate issued not more than 18 months prior to the date of recommendation and a statutory declaration made by the person not more than one month prior to the date of recommendation stating that to the best of his or her knowledge and belief he or she is in compliance with tax obligations and nothing in section 22(2) prevents the issue to the person of a tax clearance certificate.
Section 22(2) will apply to a situation where the Government wants to appoint a person to the Judiciary who had not been recommended by the JAAB. Such a person would also have to fulfil the tax clearance requirements. It should be noted that since the passing of the Courts and Court Officers Act, 1995, Governments have not appointed a person to judicial office who had not been recommended to them by the JAAB. Section 22(2) also provides that a serving judge moving to a higher court will not be subject to a tax clearance regime. The tax clearance requirements will apply to appointments to the Supreme, High, Circuit and District Courts.
The other amendments are consequential. The amendment reflects the issue raised by Deputy Mitchell on Second Stage and I hope it addresses it.
We are taking eight amendments which will have a profound impact on the legislation. I want to tease out this issue at length. The Bill provides that members of the Judiciary should produce tax clearance certificates but it does not provide for a penalty for non-production or for a judge who is not tax compliant. Instead of confronting the issue the Minister of State is rowing back on the question of judicial standards and accountability. He is nodding. I am interested in what he has to say.
Perhaps I was not clear. The point raised by the Deputy on Second Stage was that once a judge was appointed and subsequently did not produce a tax clearance certificate, nothing could be done about it. That was a valid argument and the legislation was wrong in that regard, as the Deputy pointed out. I have substantially amended the provision to ensure a tax clearance certificate must be presented by an appointee to the Judiciary in advance of the appointment, otherwise he or she cannot be appointed. I am not rowing back. This is a significant improvement.
I accept the point that, as the Bill was drafted, the certificate could be presented following the appointment and there was no way of removing the judge. There was no sanction if the appointee subsequently did not produce a tax clearance certificate. Under the amendment, the appointee must produce the certificate in advance of taking up the appointment.
That is very much welcome and an improvement but should an appointed judge or an existing judge turn out not to be tax compliant nothing can be done. The question of accountability in the legal profession, including among the Judiciary, must be confronted. It must be approached in a way that can be reconciled with the separation of powers but the doctrine of the separation of powers is being used as a cloak. Therefore, nothing remotely approaching accountability among the Judiciary will be addressed because the people who depend on it are legal advisers.
This is a major issue which must be addressed not only in regard to standards and ethics in public office but also in terms of performance, consistency and so on. While I welcome the provision that people may not be appointed as judges unless they have a tax clearance certificate, that does not address the non-tax compliance scenario nor does it deal with existing members of the Judiciary who are not tax compliant.
I have tabled other amendments which propose that judges, similar to Members of the Oireachtas, should be required to make a declaration of interest annually. If we were serious about standards in public life, we would confront these issues, not back away from them. I will press strongly during this debate for us to confront the issues of judicial accountability and standards.
I listened carefully to the Deputy's contribution. I have moved as far I can under the legislation in regard to his substantive point. I do not disagree necessarily with the points made by the Deputy, which are relevant, but, as he well knows, the Minister for Justice, Equality and Law Reform and others are examining this issue. There are extremely important issues relating to the separation of powers and what is understood by the cross-over of powers between the Judiciary and the Legislature. In the context of the legislation I can only plan for the future.
I take the Deputy's point regarding judges who are tax compliant on the day they are appointed but are not the following year. That poses a problem but it relates to the fundamental point that has arisen in the past 12 months regarding how the Legislature deals with the Judiciary. That is not something I am dealing with. As the Deputy will be aware, the Minister for Justice, Equality and Law Reform is examining this issue.
Two issues arise. The issue of the once-off test, referred to by Deputy Mitchell, also applies to a lesser extent to Members of the Oireachtas in so far as they are required to prove tax compliance at the time of election but not during the tenure of that particular Dáil. It is a once-off test which is repeated at the following election. I am not entirely sure that is satisfactory, though I do not know of any way to get around it.
The other issue is the practicality of providing tax clearance certificates, which was discussed at length in our hearings before Committee Stage. The Revenue made it clear that on occasion it could take a while to do so. We considered, for example, whether it might not be appropriate to insist that candidates provide such certificates. The Revenue was of the view that could not be done. There are potentially circumstances where somebody could be in a legitimate dispute with the Revenue. It still is not clear whether a certificate would be provided in such circumstances.
Is the Minister of State satisfied that there would not be an undue delay in appointing judges? I recall one occasion when such an appointment was made extremely rapidly but that presumably would not be facilitated by this provision. Will there be a delay of months, if not longer, between the decision of Government and the appointment by the President of a judge? If needs be, that will have to be the case.
The principle underlining the legislation is that everybody should be tax compliant. I do not want unnecessary or undue delays. I accept the points made by Deputies Mitchell and McDowell but it is not within my power to resolve them in the context of this legislation. They relate to fundamental constitutional issues.
There are fundamental issues relating to the separation of powers in terms of the power of the Judiciary as a whole, the role of individual judges and the role of the Houses of the Oireachtas. There has been one way traffic. The courts have repeatedly interfered with the business of the House in regard to a number of issues. There is no difficulty in the Judiciary extending its powers to what is appropriate to Parliament. Another example in the offing is the review of the Abbeylara inquiry. One of the factors which led to the decisive rejection of the Nice Treaty is that people believe the Houses of the Oireachtas are not as vigilant on behalf of the electorate as they should. This includes vigilance in ensuring the rights and prerogatives of Parliament are upheld against all comers.
For instance, time and again the Judiciary has refused any form of accountability, no matter how appalling the standards of an individual judge have been, whether the judge was sick, tired or acting in an aberrant manner. Judges are human and are bound to have problems from time to time, yet there has been total resistance to having any form of checks and balances or accountability within the Judiciary.
When the Courts Service was established, the Judiciary insisted on having a majority on its board. That was unnecessary. Up to then the Secretary General of the Department of Justice, Equality and Law Reform was the chief executive per se of the courts for which the Minister was responsible. However, the Judiciary extended the limits of the doctrine of the separation of powers to take control of the Courts Service, which should not have been yielded to it. The doctrine is constantly used to extend the boundaries of judicial power and this has gone too far. Parliament should not involve itself in what is appropriate to the courts but the issue in this context is judicial standards. Almost every judge has more influence than any Member of this House, yet they are not required to make any declaration regarding their interests.
We are rowing back in the legislation. Provisions which the Attorney General has not deemed unconstitutional are being removed. It is time the Oireachtas said there is a need to limit the march of the Judiciary into what is proper to it. It is necessary to ensure every judge is accountable.
I am not deleting anything from the Bill. I propose to amend the time frame for producing tax clearance certificates to meet the point raised by the Deputy. I am ensuring that everything happens prior to appointment. The Deputy is raising serious constitutional issues but there is no point in making provisions in the Bill which are not enforceable. The issues the Deputy suggests I address in the legislation are not enforceable without a constitutional amendment.
The Minister for Justice, Equality and Law Reform attempted to introduce a constitutional amendment which was not acceptable and there may have been good grounds for that but it is accepted on all sides of the House that something needs to be done in this area. The Minister for Justice, Equality and Law Reform is examining constitutional change and, hopefully, there will be all-party agreement on that so that we can move forward. However, I am prevented constitutionally from making changes in this legislation. I am trying to introduce changes that are enforceable.
Where in the Constitution is it stated that judges should not be accountable to some authority?
The Deputy knows what I mean.
I do not. I have studied this issue in great detail, especially in advance of the DIRT inquiry, and through the PAC's oversight of spending by the courts, particularly in regard to the lack of accountability for a huge amount of court funds. The arguments that have been paraded over the years as an excuse are not valid in many cases. We might as well remove the provisions for judges in the legislation and call it the standards in the Oireachtas Bill because we are not providing for standards in judicial office, yet additional onerous responsibilities will be applied to Members of the Oireachtas.
Advice has been offered over the years whereby judges cannot be made accountable. That argument is phoney in many cases. The doctrine of the separation of powers has been used as camouflage to cover many areas it should not.
We need to tease this argument out in terms of what can be done. Statutory declarations and tax clearance certificates are the issues involved. The Minister of State's proposal regarding the certificates is fine but it needs to be ascertained whether it is possible to provide an ongoing mechanism for producing certificates and what is the default scenario if one is not provided. It is possible for us to provide for an ongoing mechanism to require such a certificate on a regular basis to be specified and there is no constitutional or other bar to that.
However, there is a difficulty regarding what happens when a tax clearance certificate is not provided in so far as there is no disciplinary mechanism. There is all-party agreement that such a mechanism is required but it has not been provided yet. I agree there is a lacuna which we cannot fill at this stage. I would like the Minister of State to give a commitment to provide for an ongoing tax clearance provision and to establish a disciplinary commission to which non-compliance cases can be referred.
Declarations of interest, which are not dealt with in the legislation, must be addressed. I am not a constitutional expert but I do not know of a constitutional ban on requiring judges to specify their financial interests, similar to us. I do not see that there could be any difficulty requiring them to do so on a regular basis, whether annually or otherwise. Perhaps the Minister of State should consider this issue before Report Stage because there is no reason it should not be addressed.
I do not have a problem with the Deputy's comments or those of Deputy Mitchell, politically or otherwise. The nub of the issue we are discussing is covered by amendment No. 46. The issue of judicial conduct and ethics has been considered in the recent past by the Constitution Review Group and by an All-Party Committee on the Constitution, which, inter alia, recognised the need for improved oversight of judicial conduct.
The all-party committee recommended the establishment of a judicial council to review judicial conduct. More recently, a report from a judicial committee established by the Chief Justice also recommended the establishment of a judicial ethics and oversight body. Deputies will be aware that the Minister for Justice, Equality and Law Reform had proposals to act immediately in this area in terms of bringing forward a constitutional amendment to be followed by legislation to establish a judicial council and ethics committee but he withdrew the proposal in the face of opposition from the Deputies' respective parties. However, the Minister is convinced of the need for action in this area and, particularly, the need for a judicial ethics oversight body, which concurs with much of what Deputy Mitchell said. The question of whether the need to make statutory declarations of interest should be extended to members of the Judiciary might be more appropriately considered in the context of legislation which will be needed to establish the judicial ethics and oversight body. I do not disagree with the Minister.
I have tried to deal with the specific point on which Deputy Mitchell spoke at length on Committee Stage. The Deputy is correct that the tax clearance certificate issue is the only one I am addressing in regard to judges in the legislation. I did not pretend there were not other issues for the reasons I outlined. I can provide for the production of tax clearance certificates annually but that has not been proposed for Members of the Oireachtas either. The legislation must be reasonable.
Members must meet so many criteria, responsibilities and conditions that it is not necessary to produce a tax clearance certificate every year. Elections occur, on average, every four years and that is a reasonable time frame to provide such certificates. I could perhaps suggest that members of the Judiciary do likewise every four or five years to ensure consistency. I will examine that issue before Report Stage. I do not want to annualise everything because all of us will be snowed under with paperwork.
Generally I am worried that trust and honour is disappearing altogether. If we do not have personal honour and esteem, we have nothing and trying to force everybody into a corner in a legal sense is not necessary. I will come back to Deputies on that point. All I can do is ask committee members to accept my bona fides on the wider issues Deputy Mitchell has brought up for discussion in these and later amendments and that they do this on the basis of what the Minister for Justice, Equality and Law Reform is doing. I cannot pre-empt him in that regard.
This goes to the core of the Bill. If the Judiciary is not dealt with comprehensively in the Bill, is there a need for it? Members of the Oireachtas are already subject to the Ethics in Public Office Act and the Electoral Act, as amended. Do we need a Standards in Public Office Bill if that is the case? Do we not merely need a Bill to amend the Ethics in Public Office Act?
The Minister of State is correct to say that onerous requirements are placed on Members of the Houses of the Oireachtas without providing the wherewithal to Members to answer those queries. I am in my 25th year in this House and have never had anyone to file letters for me. There are no files, just piles of paper. We are not provided with the wherewithal and will have to be provided with it now.
If we cannot answer questions in future under this Bill, the other Acts and the Prevention of Corruption (Amendment) Bill, we will not look under-resourced or inefficient but corrupt. We will be told that we are being evasive in our replies when the simple fact is that we do not have a filing system because we do not have anyone to file for us. I do not know of any organisation as under-resourced as us. All these additional responsibilities have been placed on us in recent years without providing the extra resources for Members. This must be addressed or else there will be many pseudo-scandals because Members are not in a position to answer questions.
I accept the Deputy's bona fides. His experience as Chairman of the Committee of Public Accounts is undoubted and unrivalled in the House. I am not in dispute with much of what he says.
He queried the purpose of the Bill. I am sure he is aware that many of the issues arise from the McCracken tribunal, especially the issues of tax clearance certificates, the investigation of standards, etc. That is the reason the Bill was deemed necessary and we deal with it today. There is a range of issues to which I say, "Amen", on which I wish we, collectively, as politicians, would stop fighting each other across the Dáil and to which we should agree and move on to other matters, such as the facilities Members have and should have. I do not dispute that we are under-resourced.
I could sit here discussing this matter for the evening but I have moved on a specific point by tabling an amendment in that regard.
Is not the net point made by Deputies Mitchell and McDowell that, if a Bill on standards in public office is being brought forward, we would be seen to be negligent to let it pass without it being comprehensive? Is it not the purpose of legislation going through the House that all eventualities are covered? We see compound wording in Bills to cover such eventualities. Is it not obligatory on us to go the extra mile and cover all the options?
Judges are part of public office and play an important and hugely influential role. The decisions they make are far-reaching and can affect not just individuals but whole societies and communities. We have seen the consequences of a judgment on elections and referendums. Judges are widely influential. Is it not time they were obliged to make statutory declarations about where their interests lie? Does the Minister of State not see that we might be negligent were we not to include them in the Bill? Is it not the net issue that we would not be doing our job properly if they were not included?
I am aware the Minister of State addressed the point made by Deputy Mitchell and respect him for it. He has done a good job because he has sought tax clearance certificates at a time when he has the power to do so. That is a good idea and he has handled the issue well. While I am aware the point raised by Deputy Mitchell may be new to the Minister of State, is it not important that he give a commitment that he will come forward on Report Stage with amendments to cover it and make the Bill complete? It would be incomplete otherwise.
The Bill arose from a specific context which related to Oireachtas Members. The select committee expanded it to try to include the wider public service, which is what I did on foot of its recommendation. The Bill does not relate to the Judiciary and it is not a failure of the Bill that it does not deal in great depth with it.
It is clear - there is no point pretending otherwise - that there must be an ethics body for the Judiciary. There is no doubt about that and everyone appears to agree with it. It is recommended that there be a judicial council to deal with the issues raised by Deputy Mitchell regarding answerability, accountability and transparency in the public domain. I have no argument with this.
I do not deal with those issues but with this Bill. I included judges because I believed they should be included, although I did not have to. Deputies Mitchell, McGrath and others referred to the Electoral Act and the Ethics in Public Office Act. This Bill arises from the McCracken tribunal. Three other important and fundamental issues - codes of conduct, investigative powers and tax clearance certificates - were introduced in the context of the Bill.
I would not like Deputies to get the impression that the Bill is a failure because it does not go centre stage with the Judiciary. That must happen and what I outlined is being done in that regard in the Department of Justice, Equality and Law Reform is how it will be dealt with.
The Minister of State mentioned trust and honour and told us about the work being done in the Department of Justice, Equality and Law Reform. He also mentioned that this was not proceeded with to a referendum because of the opposition of the Labour Party and Fine Gael. We thought it was a profound issue which should not be rushed and taken with other referendums. However, the Taoiseach indicated on the Order of Business that the proposal had been dropped.
I was not present.
He appeared to indicate that, which is a major disappointment. What is happening here appears to be a watering down.
On the issue of whether we can depend on trust and honour, 90% of Members of this House have always acted on that basis. They do not need the Electoral Act and the Ethics in Public Office Act. The bad guys will always break whatever law is passed.
I accept that.
The rest of us have always——
That is my point. I do not see the reason everyone should be forced to fill in forms on an almost daily basis because of the few. The vast majority in public life act on the basis of trust and honour.
I have no doubt the same is true of the Judiciary and that the overwhelming number of them are above reproach, but there will always be the bad guys or those who fall foul of their own standards. There is a need for some provision to deal with them. We are debating the Standards in Public Office Bill and there is no sense in the Minister of State saying that, while he is responsible for standards in public office, he cannot do much about the Judiciary. They are in public office.
The Deputy must be fair. There are issues which, as he said, are hugely and fundamentally important, so much so that his party believed, perhaps legitimately, that the Government was rushing a constitutional amendment in this area and that there was not enough discussion on it. He should not, therefore, suggest I can suddenly include all this in the Bill as if it were acceptable. He cannot have it both ways. Despite what I have done, I do not dispute that there are issues which must be dealt with. They are being dealt with through the establishment of a judicial council, an ethics committee and an oversight body to examine judicial ethics. These actions are fundamentally important.
I initiated those proposals in the democratic revolution. Going back to the need to have a tax clearance certificate before a person can be appointed to a judicial position, to expect to have that every year is probably too onerous. Would it not be reasonable to require it not less than once every five years?
Perhaps the Minister of State is more familiar than I am with the current position. Will he tell me whether there is a debriefing process when a judge is appointed, as there is with Ministers, whereby the person appointed is told to divest himself or herself of his or her financial interests?
I do not know.
I was not aware of any when I was Minister for Justice.
Barristers, who are mainly appointed as judges, must have tax clearance certificates.
They need to have them for work.
I move amendment No. 3:
In page 4, subsection (1), line 19, to delete "Deputy Secretary General" and substitute "Principal Officer".
The Bill proposes to place an onus on people of the rank of deputy secretary general or in positions with similar remuneration throughout the public service to make these declarations. Deputies have just been promoted to the rank of assistant principal officers. Why should only people of the rank of deputy secretary general or higher be required to make such a declaration? Why not those of the rank of principal officer or assistant principal officer or higher? Why is such an excessive onus placed on Members of the Oireachtas who, in most cases, have much less influence than people in the public sector?
That is if one accepts the salary being increased to the level of assistant principal officer. It is much too low.
Which?
What Deputies are paid, even under the new system.
Yes, I agree. I met a chap recently who had left the public service, was looking for a new job and was commending himself to me in the hope that I knew of something coming up. I asked him what salary he would require and he said £43,000. He was an assistant principal officer and, at that stage, we were still on £38,000. That was only a while ago and we were recently promoted to that level. I have been promoted to assistant principal officer level after 31 years. What have we done to ourselves? Despite this, we are reluctant to impose anything like those standards on others who, in most cases have more influence than any ordinary Member of the House. I propose that the requirement should be principal officer rather than deputy secretary general.
The point is well made. In my experience the principal policy making grade is principal officer and, in some cases, people senior to principal officers only cross the "Ts" and dot the "Is". There is a solid case to be made for starting at that grade.
The Deputies have proposed that the definition be amended to include the lowest point of principal officer pay level and above.
Who prepared the note the Minister of State is reading out?
This means all these people would have to provide tax clearance certificates. The measure extends not just to the Civil Service but to the wider public sector in respect of positions designated under the Ethics in Public Office Act. The amendment would increase hugely the number of persons who would have to provide tax clearance certificates.
The deputy secretary general level was selected because it would cover all the most senior public servants, including chief executive officers of major State bodies. More junior persons would, in the normal course, be in a subordinate role within their organisations and be subject to the disciplines associated with such subordinate roles. That is why I cannot accept the amendment.
We had a discussion recently about the draft code of conduct dealing with people from principal officer level and upwards. One of the guidelines in the code of conduct is that principal officers should not take on significant matters of financial interest without making it clear that there is no conflict of interest and, presumably, a tax problem going with it. While quite a few more people will be involved, it should not be too difficult for them to obtain tax clearance certificates if they abide by the rules set out in the code of conduct.
The view is that they are PAYE workers in the main.
Therefore, it should not be too difficult for them to obtain a tax clearance certificate.
It should not be. I will examine it for Report Stage.
Members of the Oireachtas are also PAYE workers.
There are many people in the Oireachtas who have other interests outside.
Can civil servants have other interests?
They can, but by and large they do not.
How does the Minister of State know?
I am not trying to defend it but we are in a different system.
Deputy McGrath tells me 82% of Deputies are full-time and have no other source of income. I am sure the percentage in the senior levels of the Civil Service is higher than that. I am sure, however, that there are people with other jobs. Why not accept the amendment? If it is 100%, there should not be any difficulty obtaining a tax clearance certificate.
Whether or not we like it, we have put ourselves in this position in recent years because of the sins of the few. The difference is that civil servants generally are career civil servants who would have begun at a young age. Most politicians have had other careers, businesses and interests before they became politicians. That is the difference, but it is not to say there is anything wrong with it. I will return to the issue on Report Stage.
The Minister should accept the amendment.
I move amendment No. 4:
In page 4, before section 2, to insert the following new section:
"2.-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.".
Given the social norms of today, we need to define more comprehensively the definition of spouse. Otherwise, those who are effectively a couple, living together but not married, would have less onerous responsibilities than those who are married.
The effect of Deputy Mitchell's proposal here is to specify that connected persons in respect of whose interests an office holder will have to make a return or whose interest might lead a person to make an ad hoc declaration of a conflict of interests in accordance with the Ethics in Public Office Act, 1995, shall extend to co-habiting partners. It is very difficult to define well the concept of a life partner which is still unusual in law despite what we might accept as the norm in many cases nowadays. Some such arrangements are still not entirely accepted in society and may be very much less public than ordinary marriages. Same sex arrangements might be covered even where these were not publicly known about. It would be a considerable intrusion on the privacy of some arrangements if the persons concerned were required to make such declarations even if they were not published. It would seem inappropriate to lead the legislative field on this issue in this type of legislation. It is clearly an issue for social legislation. We are a long way from clarity on the matter and I am not prepared to accept it in the context of this Bill. The same proposal was made during discussions on the ethics Bill in the mid 1990s and was not accepted.
I admit that this is not an easy area to define but the incidence of unmarried couples living together, effectively as man and wife, is now much greater than it was even five years ago. This is the social norm in much of the western world nowadays. If we do not make some reasonable provision to cover that situation we leave a gaping hole and there is the possibility that the legislation could be found by the courts to discriminate against married couples. It should not be completely overlooked just because it is difficult to define. Otherwise we create a major loophole in the legislation. The legislation should reflect the norms of the day and it would be a pity to deliberately enact a Bill leaving such a loophole.
As I understand it, this provision re connected persons refers only to Ministers and Ministers of State. Does it apply to special advisers as well as to whether there is an obligation to make a declaration of interests in relation to connected persons? Certainly the primary reference is to Ministers. It does not refer to Deputies or Senators. None of us want to begin considering people in the current Cabinet but there are people in the Cabinet to whom this applies or could have applied in the not too distant past. It is not an irrelevant consideration by any stretch of the imagination. It may be possible to devise some formula which would allow Ministers some discretion in how they deal with this. Nobody wants to be intrusive but at the same time one wants to cover what Deputy Mitchell rightly describes as an obvious loophole, if that is the right word. I do not have a solution for this but it does need to be dealt with. It is not just a theoretical possibility.
We would be aware of it. While intuitively I might agree with Deputy Mitchell that social norms here have changed it should be stressed that marriage is still very much the norm. I do not have the information to either agree or disagree with Deputy Mitchell's general assertions in this regard but I agree that the legislation is and could be intrusive. The area needs to be defined but that should be done in social legislation. When that is done and the definition is accepted we can consider the issue then but I will not lead the way in social legislation.
What does the Minister mean? In what social legislation has this ever been defined?
My point is that it has not been defined.
It is not appropriate to social legislation. This relates to standards and ethics in public office etc. There is the question of connected persons and the definition thereof. A wife, a child or a spouse of that child is a connected person but one's partner, even a publicly acknowledged partner, is not a connected person. That is not a tenable position. In social welfare legislation we have provision for a lone parent's allowance which was introduced at a time when the social norms of the time meant a huge amount of pressure on lone parents. It favoured the unmarried mother versus the married mother. Social norms today are quite different. The shame that attached to being a single mother no longer applies. That is another case where we continue to discriminate against the married mother and in fact we impede the single mother from marrying because of the position. We need to get up to date with the situation and stop legislating in a way that might have been relevant 20 years ago but is not relevant today.
I see what the Deputy says in the context of what we would say is the social norm in terms of a person openly living with a partner. It is what we would deem a "normal relationship". However, defining that could involve all sorts of extraneous issues. I can think of a hundred different sorts of relationships that could be construed as personal private relationships. The effect of those private relationships becoming public in any way could be extremely serious for the people involved. In fact it would probably force many people not to tell the truth for personal and moral reasons etc. This is not a piece of moral legislation in that sense.
I accept that it is a delicate issue and that there are many variations of the situation but that is true of married couples also. Many married couples have other relationships they do not want the world to know about——
Which they do not declare and are not obliged to declare under this legislation.
That is not what I have in mind. What I have in mind is the situation where effectively the couple is a married couple. This is so widespread now and most young people start off and live together for many years as husband and wife without being married. If they marry the interests of the other half of the relationship is not covered by this legislation. That is untenable given the social norms of today. The points the Minister makes complicate the issue but they are not relationships under the terms to be covered by this. Maybe the Minister will consider this on Report Stage. We are talking about situations where an unmarried couple lives together publicly as husband and wife.
This was raised on Second Stage and I understood the point being made. It was instinctive to want to react to it positively but when I began to go into the issue it raised a whole range of other issues which made it difficult. If there was a way, legally and constitutionally, that I could define it in the way Deputy Mitchell suggests, I would like to do it. However, I do not wish to have the situation where I then have to exclude all sorts of other relationships. How then does one start to define what is being excluded? In fact people not living together could have a stronger relationship than some living together. I will look at it again. It was something I would like to have tied down but I did not have the means to do it by definition in the context of this legislation.
I admit that it is difficult. We have dealt with situations where spouses have separated. We exempt a spouse, who remains married but is separated, from the person making the declaration. That is also a sensitive situation. It should be capable of being addressed.
The Deputy can come back to it on Report Stage.
I am interested to know what happens in other jurisdictions where the phenomenon of unmarried partnerships has been around for much longer than it has here.
The answer to that question is the obvious one. I can honestly say this legislation is leading the world.
Is it not the case that declarations made by married spouses are not publicised? They are provided for the Ceann Comhairle's office or something similar.
They are not publicised.
To require them to make a declaration is already an intrusion into the privacy of the spouses of Ministers. The point is that the information is not publicly available.
I may have misled the Deputy when I said this applies to Ministers only as that is not the case. It also applies to public servants where material interests arise. It could happen that two people of the same sex who work in the same office are involved in a relationship about which nobody knows. If one had to declare such information to one's superiors, it might impact in the wrong way. I will come back to this amendment as it makes a point I accept and would like to protect better than is currently the case, but I am not sure if it is within my remit to do so.
As amendment No. 7 is related to amendment No. 5, they may be discussed together.
I move amendment No. 5:
In page 5, to delete lines 11 and 12 and substitute the following:
"(iii) the Clerk of Dáil Éireann,
(iv) the Clerk of Seanad Éireann, and
(v) a person who-
(I) is appointed to be such a member by the Government following resolutions
(II) passed by each House approving the proposed appointment, and
(III) is a former member of one of the Houses and is not a representative in the European Parliament.".
I cannot understand the reason amendment No. 6, which relates to the composition of the Standards in Public Office Commission, has been ruled out of order. To rule out the two changes I propose on the basis that a charge would be imposed on the Exchequer is a bit rich.
Amendment No. 6 in the name of the Deputy seeks to extend the membership of the Standards in Public Office Commission. As the additional members would be paid remuneration and allowances for expenses, the amendment would impose a potential charge on the Exchequer and must be disallowed in accordance with Standing Order 142(3).
Perhaps I will propose an amendment to the amendment in that case.
I will address it in the context of the other amendments.
The Deputy can still speak on the matter, but cannot move his amendment.
The matter dealt with in amendment No. 5 has been raised on a number of occasions. The Government sees considerable merit in the new commission having the perspective of politicians available to it. This change was announced on Second Stage and broadly welcomed. The appointment procedure envisaged for the former politician will involve the approval of a Government nominee in both Houses. The amendment adds to the membership of the commission a person who is a former Member of either House but not of the European Parliament. He or she will be appointed following a resolution passed in each House approving the appointment.
Amendment No. 7 allows for a term of office of six years for the former Member on the commission, the same as the chairman of the commission. If the former Member were to be nominated as a candidate for either House or the European Parliament, or as a Member of the Seanad, he or she would automatically cease to be a member of the commission. The former Member could be removed from the commission by the Government for "stated misbehaviour, incapacity or bankruptcy and only then following resolutions passed by each House calling for his or her removal." This protects against pre-emptory removal by a hostile Executive.
I am happy with the point made.
The Minister of State's proposals are a step in the right direction, although I would have preferred Deputy McDowell's amendment which went further than the Minister of State's amendments by providing for a former secretary general or deputy secretary general of the Civil Service to become a member of the commission. I have reservations about the proposed membership of the commission. It excludes the Ceann Comhairle who should be the principal upholder of standards in the Oireachtas, as is the case with the Speaker of the House of Commons. The Ceann Comhairle is a member of the Ethics in Public Office Commission, but seems to have been written out of the new commission. I am surprised he is not chairman of the commission, but that may have been his decision. It is wrong to exclude the Ceann Comhairle from membership of the new commission.
The Comptroller and Auditor General, the Clerk of the Dáil and the Clerk of the Seanad, all of whom will be involved with the Standards in Public Office Commission, work closely with Members. A complaint was recently made against me regarding a famous poll, although I was exonerated. I was Chairman of the Committee of Public Accounts at the time and had to work with the Comptroller and Auditor General and the Clerk of the Dáil on a daily basis. There is a question of proximity, as the officials I have mentioned may not be seen as genuinely detached from Members. They are human and personal relationships develop easily, especially when people have known each other for a long time and come up from junior positions together.
The Bill to be introduced later this year providing for the establishment of the Oireachtas Commission should spell out in detail the role, rights, privileges and responsibilities of the Ceann Comhairle. Primary among the responsibilities of the Ceann Comhairle should be to uphold standards in the Oireachtas to ensure, for example, Members observe new rules and that Ministers answer questions. I do not know the reason the Ceann Comhairle has been written out of this legislation, but suspect that it may be linked to the non-interventionist persona of the current Ceann Comhairle, who may not be keen to take on additional roles. Even if my interpretation is fair, we should not fail to set standards for the future. There is no hope of succeeding with the urgently needed revolutionising of the Oireachtas if the Office of the Ceann Comhairle is not imbued with the power and responsibility to uphold standards. The changes to which I refer are needed even more in the aftermath of the referendum on the Nice Treaty. The Ceann Comhairle is to be written out of the commission when we should be requiring him to help maintain standards. I ask the Minister of State to think strongly about this issue.
The Comptroller and Auditor General, the Ombudsman and the Clerk of the Dáil have been lumbered with additional responsibility in recent years.
Like ourselves.
Many Acts give a further role to the officials I have mentioned, to the extent that the time they can spend on their primary duties has been eroded. I considered proposing an amendment to this section substituting other officials in their place, but could not think of appropriate substitutes. I would like the Ceann Comhairle to be provided for in this section, as a political perspective is needed. When Deputies were initially briefed on how the Ethics in Public Office Bill, 1994, would operate on a day-to-day basis, it became apparent that the legislation would be interpreted in a legalistic manner, although I would not like to make a judgment on whether that was the fault of Members or the officials on the commission. The fact that common sense was not applied meant that amendments were needed. Common sense should be used when things are said in the heat of political battle, but a legalistic attitude is applied and matters are treated like federal cases. Members may have to undergo a long and difficult process of answering something that emerged from a political battle forgotten within a day or two by those involved.
There should be a better political presence on the new commission, although I welcome the fact that a former Member will be a member of it. I ask that the Ceann Comhairle be included too. The fact that I am raising these questions does not mean I do not have the utmost respect for the offices concerned and the current office holders. Is it fair to ask officials to adjudicate on those with whom they work closely?
I understand Deputy Mitchell's request regarding the Ceann Comhairle, but he is a politician and the commission will be introduced to oversee politicians. Will members of the commission have to obtain tax clearance? Does the Bill make provisions in this area?
That is a fair point.
We have discussed that in detail already.
With all due respect to you, Chairman, I have not discussed it.
The Deputy cannot hold up the show if he does not turn up. We will allow the Deputy to make his point.
I am not referring to anyone who will be on this commission now or in the future. The Minister has the opportunity when the legislation is being debated to make it clear. Has that point been considered?
The only person who would probably not be covered by the tax clearance certificate on the commission is the former politician. All public servants are covered because they are at a certain level. Perhaps the Clerk of the Seanad is not.
Higher civil servants are mentioned, but the Minister's view has not been properly defined.
I defined it earlier when the Deputy was not here. We had a lengthy discussion about the level at which tax clearance certificates would apply to civil servants.
As regards the officers specifically named in the legislation, there seems to be a void in the legislation.
In what regard?
The Minister is asking people to sit on a commission and judge people on whether they have a tax clearance certificate, yet some of them might not have one. Can the Minister see the logic in that?
As regards the point Deputy Jim Mitchell made at length about the Ceann Comhairle, the Deputy knows the Ceann Comhairle would face an impossible conflict of interest because of his role as Ceann Comhairle of the Dáil if he was a member of this commission. I am sure the Deputy is aware that he sits on the other commission. The Government's desire is to strengthen confidence and to have absolute faith in the independence of the commission. By putting the Ceann Comhairle on it, we would not necessarily achieve that. It draws on the experience and expertise of the existing commission and that is why we shaped it this way. In his evidence to this committee, Mr. Kevin Murphy, in his capacity as a member of the Public Offices Commission, said on the question of the Ceann Comhairle's membership of the commission that the position of the Ceann Comhairle as a member of the present commission deserves special mention. The reports of the commission under section 4 of the Electoral Act are furnished by the commission to the Ceann Comhairle before being laid before both Houses of the Oireachtas. This clearly puts him in conflict as he is a member of it and then he presents it to himself.
Deputy Belton mentioned that the Ceann Comhairle has a specifically understood role. It would be foolish to put him on the commission where he would receive documentation when he could be involved in the issue. He would be required to wear both hats at the same time. His position on the other Public Offices Commission is questionable in light of the remarks made.
That is not the only anomaly.
We also moved to meet the point about putting a former politician on it and to bring that experience to it, but it would have to be someone who had gone through the system and understood it but who was now outside it.
The Minister of State mentioned the Ombudsman and his submission about the Ceann Comhairle. Did he make a submission about his own conflict of interest because he is also the Information Commissioner? Appeals on certain aspects of the Act and on rulings by the commission of which he is chairman will be made to the Information Commissioner. There is already a conflict of interest. The Ombudsman, who is the chairman of the commission, is also the Information Commissioner. In certain cases, particularly in terms of the release of information, the appeal is from the Ombudsman to the Information Commissioner, who is the same person. That is an anomaly. As someone who believes we must do something dramatic and urgent about reasserting the primacy and standing of politics, we must start with a rapid overhaul of this House. It cannot start until we overhaul the Office of the Ceann Comhairle. We do not begin by robbing him of one of his primary roles, namely, to uphold standards in Parliament.
I am not robbing him of that role in this Bill. I am setting up an independent commission. The Ceann Comhairle has his own role in terms of receiving complaints.
He does not have his own role. We are excluding the Ceann Comhairle from a role in the commission when he should have a primary role in it. His Office, which is central to the effectiveness of Parliament as opposed to the Executive, must be given strong powers and responsibilities. We are doing the opposite here by making a judge or a former judge the chairman.
The Deputy used the word "proximity" earlier. If there is proximity to senior civil servants, whether it is the Comptroller and Auditor General or the Ombudsman, when people with whom they are working are being investigated, surely there would be proximity if we put the Ceann Comhairle in that position. I thought we had overcome two issues by appointing a former politician. We wanted to ensure the independence of the commission and to have someone who had experience and who had been through the system. It would be wrong. If I was appointed Ceann Comhairle, which I am sure will not happen, I would not want to be in that position.
I do not understand that. The proximity argument may be applied to the Ceann Comhairle but, on further consideration, it should not apply to him because he has been elected to a position by the House which should be independent and fair.
That is why I am not prepared to do that.
The proximity argument cannot be used as part of the argument to exclude the Ceann Comhairle when it is not applied to the Comptroller and Auditor General and the Clerks of the Dáil and Seanad.
I am not using that argument.
It could happen that if a question relating to standards in public office arises, the Ceann Comhairle will say he is excluded by the legislation from becoming involved in that area. It is a serious and fundamental point. I am sorry for labouring this point but it is important. A central purpose of this Bill, with which I agree, is to move on from the tribunals of recent years and to raise the standards and the perception of standards in politics. However, any part of that must include the complete overhaul of the way we do our business in this House, the way we scrutinise legislation and the way we call Ministers and agencies of the State to account. It is not just about economic issues or matters relating to personal investments but about other standards which must be applied. The Ceann Comhairle is the pivotal person in ensuring that we fire on all cylinders in terms of standards and that the rights and responsibilities of all Members are upheld. It is a major mistake to exclude him.
The Deputy makes the argument for ensuring the Ceann Comhairle is not a member of the commission and retains his independent role, as he has done.
Deputy Jim Mitchell reminded me of an issue in my amendment, namely, whether there should be a former senior civil servant on the commission. There is an argument for putting a former senior civil servant on it for the same reason we want to put a former parliamentarian on it. The argument is all the more powerful if the Minister of State gives positive consideration to the amendment about which we were talking earlier, namely, to bring the threshold down to principal officers. It is already at principal officer level in the Ethics in Public Office Act in terms of making declarations. If we were to apply the same thinking and logic, we would have someone with the same broad experience on the commission. There is a powerful argument for putting someone who held that rank on it.
The amendment was ruled out of order. However, I opted for a balance. The Clerk of the Dáil, the Clerk of the Seanad, the Comptroller and Auditor General and the Ombudsman, who are all civil servants, are on the commission. I did not see the need, therefore, to appoint a former civil servant. I accept that the amendments are out of order. We should create a balance by providing for the appointment of a former politician. There will be a sufficient number of experienced civil servants on the commission. Introducing a former civil servant would not be of any benefit in terms of the conclusions to which the commission may come.
That is true in the context of those who currently hold these positions. However, it has not always been the case. For example, the former Ombudsman was not a civil servant.
The mix will ensure there will be enough civil servants. I wished to achieve a balance. That is the reason I have provided for the appointment of a former politician.
Paragraph (e) of amendment No. 7 concerns “stated misbehaviour.” What sort of misbehaviour is envisaged by this phrase?
This is a standard stated procedure. Including the phrase "stated misbehaviour" means that the nature of the misbehaviour has to be written down. It could involve a number of things such as something done by a person or a member of the commission which would clearly be unacceptable in the context of the judgments he or she will make and the role he or she will carry out. This could arise from time to time. However, it comes back to the Deputy's point regarding common sense. This covers a broad range of issues.
Paragraph (e) also distinguishes between ordinary and ex officio members of the commission. It states, “stated misbehaviour, incapacity or bankruptcy and then only following resolutions passed by each House calling for his or her removal.” What is the position regarding, for example, the Ombudsman? If the Ombudsman is declared bankrupt, can he or she be removed automatically? Would he or she be a member of the commission by virtue of his or her office, regardless of whether he or she is bankrupt?
It is not automatic. A member can only be removed by resolution of the House.
If the Ombudsman continues to hold office, the statutory provision is that he or she would be a member of the commission.
If the Ombudsman is removed from the commission by Members of the Oireachtas due to obvious problems, he or she would certainly be removed from the post of Ombudsman.
Is there any rule regarding bankruptcy in the context of the Ombudsman? Can a bankrupt continue to be Ombudsman or Comptroller and Auditor General?
I would have thought not.
I move amendment No. 7:
In page 6, between lines 17 and 18, to insert the following:
"(2H) An ordinary member of the Commission appointed to be such member under subsection (2)(b)(v)”
(a) shall hold office for a term of 6 years and may be re-appointed to that office for a second or subsequent term,
(b) shall cease to hold office if he or she-
(i) is nominated as a member of Seanad Éireann,
(ii) is nominated for election as a member of either House or to be a representative in the European Parliament, or
(iii) is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997, as having been elected to that Parliament,
(c) subject to the provisions of this subsection, shall hold office upon such terms and conditions (including terms and conditions relating to remuneration (if any) and allowances (if any) for expenses) as may be determined by the Minister,
(d) may resign from office by notice in writing given to the Minister and the resignation shall take effect on the date on which the Minister receives the notice,
(e) may be removed from office at any time by the Government but shall not be removed from office except for stated misbehaviour, incapacity or bankruptcy and then only following resolutions passed by each House calling for his or her removal.”.
I move amendment No. 8:
In page 6, line 24, before "regulations", to insert "any".
This is a technical amendment which corrects a reference to regulations under the electoral Acts.
I move amendment No. 9:
In page 6, subsection (1), line 31, to delete "a person ('the complainant') considers" and substitute "not less than three persons ('the complainants') consider."
This amendments seeks to minimise the danger of individual fly-by-nights making vexatious complaints. Such a person may be of no or doubtful standing. It is reasonable that such complainants should, at least, get a seconder. I am proposing that a minimum of three persons should be required. I will deal with the issue of vexatious and frivolous complaints or political charges later as these issues ought to be addressed. What is the Minister of State's view on this matter?
The Bill already makes considerable provision to protect against frivolous or vexatious complaints. For example, a matter will have to be of significant public importance to be investigated by the commission under section 4(1). This is an important point.
The other innovative point is that an inquiry officer will carry out a preliminary inquiry to see if there is a prima facie case, or if the complaint is frivolous or vexatious. The complaint will have to stand up fairly quickly or it will not be countenanced. The commission can drop an investigation at any time if it believes the complaint cannot be sustained.
A person making an unsubstantiated case could leave himself or herself open to an award of costs. In this context it is a step too far to require that a person who might be in possession of sufficient information about a matter of considerable importance to make a valid and substantial complaint would have to disclose that information to others in order to persuade them to join him or her in making such a complaint. There might even be instances in which such disclosure to a person other than the commission would be contrary to law.
It is a question of balance. I share the Deputy's concerns about frivolous and vexatious complaints. However, procedures have been put in place, particularly those involving an inquiry officer who will speedily investigate a matter to see if there is a prima facie case.
As Chairman of the Committee of Public Accounts I received off-the-wall complaints from individuals on a daily basis.
I presume the Deputy used his judgment and ignored such complaints.
Yes, but the commission will delve into every complaint at length. It will not summarily dismiss such complaints. Most Deputies receive occasional head-case allegations dressed up as all sorts of things. As former Chairman of the Committee of Public Accounts I still receive such complaints which I refer with glee to Deputy Finucane. It would be terrible if I did not exercise my judgment in such cases. It will only be a matter of time before this happens with the commission.
The Deputy and I discussed this issue before and I accept his point. That is the reason we have provided in the Bill for the appointment of an inquiry officer. This is a new approach which is directed at addressing the Deputy's point. Common sense must be brought to bear. I cannot define it, but I have provided for an inquiry officer who will immediately deal with complaints. This goes some way towards defining what it should mean. Whether three, four, ten or 24 sign up to a complaint is not the issue.
It is ridiculous to dignify some of these complaints, even by having an inquiry officer investigate them. Following my term of office as Minister for Justice I received a complaint from a man who alleged that former President Hillery had taken his yellow Cortina. I replied with a sympathetic letter, but he then accused me of taking his yellow Cortina on the back of a lorry. This went on for years and the Garda became involved. This is true. It was obviously a total head-the-ball situation for which there is no provision and which one should not even dignify with an inquiry officer. The fellow concerned would have many inquiry officers looking into it by asking, "could you come and meet me?" They would see that he has a great place in his own mind but we are not dealing with this sort of situation. We must separate complaints that are significant and appropriate from those that are totally off the wall. Some provision has to be made in order that the chairman or someone else will ensure it will not go to an inquiry officer.
I accept what the Deputy is saying but, in practical terms, there are people who become fixated about a point.
Yes.
There is no question about that and they believe what they are doing to be true, even though it is quite obvious that it is not. Appointing an inquiry officer does not necessarily mean that the officer wants to commence an inquiry. If he or she looks at the matter, he or she can make a judgment and does not have to commence an inquiry. If someone is going to make a vexatious or frivolous complaint, they will get one, two or three others to sign it with them.
This is an important theme which runs through the entire Bill. In dealing with the legislation we must strike a balance, on the one hand, between vexatious and frivolous complaints from those using the commission process to make political points and, on the other, encouraging whistle-blowing, for want of a better phrase. I am not sure that the debate so far has struck that balance, as it should. The people we should be encouraging to blow whistles are, by and large, public servants who are likely to have become aware of maladministration or corruption within the public service or on the part of politicians. They may be located in the planning office of a local authority and have become aware of problems, or gardaí who have become aware of particular difficulties. They are likely to be the people whose jobs bind them to a certain measure of confidentiality. We need to send them a message as they may very well be troubled by information of which they are aware that they should make it available. We should not seek to make it unduly difficult for them to do so. They have a public responsibility and it would be a public service if they did so. That message has to be stated clearly.
Perhaps I am reading this incorrectly, but my understanding is that section 4(3) allows the commission to dismiss a vexatious or frivolous complaint without requiring an inquiry officer to look into it first.
Yes.
Prior discretion comes into play even before the inquiry officer's report is presented. If one receives a letter, one does not have to go further. That is where the Minister of State's common sense argument comes into play. In fairness, it is a bit much to expect public servants, who might be in a difficult or sensitive situation, to be whistle blowers.
I accept that point and have just put it down for decision. Deputy McDowell has expressed it well, that there should be some provision whereby the chairman or chief executive of the commission can say, "no action whatever on this."
That is the point being made, although I should perhaps have made it clearer, in highlighting the inquiry officer as an addition which is innovative in that it has not existed heretofore in ethics legislation.
Is the amendment being pressed?
Will the Minister of State consider some other provisions on Report Stage that will clarify the matter?
If it needs to be clarified, I will do so. I am not suggesting to the Deputy that I will expand, for obvious reasons, the number of co-signatories to a complaint.
I will not press that matter. There is a category of complaint which is so off the wall that it should not even be dignified by an inquiry officer.
Yes, but that matter is covered. Section 4(3) states, "The commission may request an inquiry officer to carry out a preliminary investigation of any complaint under subsection (1) falling within paragraph (a) of that subsection.” If it considers the complaint to be frivolous or vexatious, it can dismiss it immediately. It does not have to go to an inquiry officer.
The commission will look at it first.
Yes.
It can then decide to get the inquiry officer to look at it, and he or she will report back directly to it.
I move amendment No. 10:
In page 6, subsection (1)(a), line 34, after “omission”, to insert “after the commencement of section 2”.
The Government wishes to provide that neither the new commission nor any committee of the Houses will have jurisdiction to investigate specified acts occurring before the enactment of the Bill. The Government believes that retrospective operation of the Bill might require the commission or committees to review old or disreputable allegations against persons in public life, or even to revisit issues which have already been investigated by tribunals. Bills of this type would not usually be deemed retrospective but our advice is that, as currently worded, the Bill requires a provision to make this clear. That is what I am doing in the amendment. It is standard procedure. The effect of the inclusion of the words proposed will be that only omissions or acts occurring after the commencement of the Bill may be complained of. That is reasonable.
I am not quite so sure about this. I had not read the amendment very carefully and was not up to speed with it. If, for the sake of argument, somebody is shown to have been - let me try to give a good example - guilty of maladministration or dubious practices in the planning process ten years ago, it is reasonable to say that their capacity to do their job within the planning process or that public confidence in the performance of their duties now would be diminished, notwithstanding the fact that the complaint refers to something that happened ten years ago. I am trying to think through the legal consequences of what the Minister of State is saying. Clearly, in criminal law one cannot make it retrospective but I am not sure that one could not do so. Perhaps a stricter test would be required but surely there must be circumstances where something done in the past would influence people's confidence in one's capacity to do a job now?
My own understanding is that if a complaint was made which is at issue when the Bill becomes effective, clearly it will come out that it relates back to a whole series of events. I do not want to see the Bill being used to pursue things that happened years ago. One cannot begin to make legislation retrospective, it is that simple. If we were to do so, we would be moving in another direction. The Bill will become law from the day it is enacted.
While I fully understand what the Minister of State is saying, I wish to make an observation. If it can only deal with acts or omissions from when the Bill becomes law, in all probability it will be a few years before those actions come to light and facilitate a complaint being made. Effectively, it might be a few years before we start to see complaints coming through.
It would not matter if it was a few years after the Bill was initiated. That may be the case but it will be operated on the basis of when the Bill is signed into law. It may take a couple of years but they would still be current under the Bill under which the incident would be cited and a complaint made.
Let us say, for the sake of argument, a planning officer took a few bob to give planning permission five years ago and he or she is still working in the local authority concerned. Are we saying that it will not be possible to process a complaint dealing with that act, notwithstanding the fact that he or she is still a planning officer?
Tribunals are looking into that matter.
I just took planning as an example.
That is a fair point but I could not countenance a situation where anybody who - whether in planning or any other issue being investigated - has been found guilty of an offence would be allowed to remain in their position.
I understand the Minister of State's position but we will be in some difficulty if we establish the commission and the following day a complaint is made about an act or omission committed six months ago, which is still relevant to the performance of the duties of the person still in office.
Yes, but the law is applied as it stands at the time. Let us not suggest that because we do not have the Standards in Public Office Bill or this Bill in place the issues the Deputy is raising cannot be dealt with under the law, they can. There is no question about that. As matters stand, the law will deal with them without this Bill ever being enacted. There are ways and means to deal with them under a whole range of Acts. As regards the issues specifically raised by the Deputy, this Bill will add another dimension to standards in public office and be effective from the date it is enacted. It is reasonable at any time to deal with matters under the law as it stands. It would be wrong to go off at another tangent.
Referring to the tribunal established by the Oireactas to deal with the affairs of Mr. Haughey and Deputy Lowry, at the time the acts or omissions in question were, or not, committed, there was no tribunal in place or expectation that the acts allegedly committed would be subject to the scrutiny allowed by the process initiated. Are we not doing something similar by initiating a similar complaints process? I do not see the reason it cannot be applied with some threshold or requirements. I am not sure we should accept that it will have no retrospective authority.
From my experience of dealing with such matters, I cannot remember a time when I was involved in enacting retrospective legislation. I do not want to comment on the tribunals or prejudge what they may or may not find, but there may have been substantial breaches of the law which will be dealt with. Whether this tribunal is in place does not affect the existing laws. The tribunal is teasing out exactly what happened. The law has the capacity to deal with wrongdoers in the severest way. I may wish to revisit this matter on Report Stage.
I move amendment No. 11:
In page 6, subsection (1)(a), line 39, after “public” to insert “or which may damage public confidence in public administration generally”.
This amendment seeks to do a belt and braces job on the legislation. The subsection with which it deals refers to the performance of acts or omissions which might affect public confidence in the capacity of a stated individual to do his or her job. I seek to broaden it. Someone might do something which impacts on public confidence in public administration generally and, though I do not intend any specific reference, I will hypothesise an example.
If a garda has given someone money for planning permission, does it impact on his or her capacity to act as a garda? It could be argued that it does or that it does not. If their behaviour is inappropriate for a public servant, but outside their immediate area of responsibility, and impacts on public confidence in the administration of public duty, is it covered by this subsection? I have tabled this amendment for debate because I want to ensure we are not too restrictive in the definition we put in the Bill.
We were not quite sure from where the Deputy was coming. As far as I understand it, the amendment seeks to expand the definition of the type of act to be investigated by the commissioner. In addition to existing ethics and electoral Acts, the relevant part of section 4(1)(a), if amended as proposed by the Labour Party, in describing an act or omission will read: “. . . or the circumstances of which are, such as to be inconsistent with the proper performance by the specified person of the functions of the office or position by reference to which he or she is such a person or with the maintenance of confidence in such performance by the general public or which may damage public confidence in public administration generally, and the matter is one of significant public importance. . . ”.
While appreciating the intention of the amendment to extend specified acts to include those which would bring the whole administrative system into disrepute, it does seem a little vague. It is hard to envisage a person doing something so gross as to damage confidence in public administration generally and yet would not be inconsistent with the maintenance of public confidence in that person's performance in his or her official position. The Deputy has been a little more specific in the way he has explained it this evening. I have no disagreement with the amendment but I am trying to figure out if it is absolutely necessary.
I am trying to work out if the Bill, as formulated, is too restrictive. Does the breach have to be specific and relate to the job the person is doing or can it be misbehaviour of a more general kind which impacts on public confidence? If it is the latter, then there is no need for the amendment.
It is the latter.
I want to be absolutely sure that is the case.
The amendment is a good one, but the latter is the case. That is where we could not quite get a handle on where the Deputy was coming from.
A principal officer in the Department of Finance could be involved in planning irregularities which do not impact on his doing his job. That is what I am getting at. He might be perfectly capable of being a principal officer in the Department of Finance dealing with public-private partnerships.
The Bill is not confined to the person acting only in their office. Clearly if he or she does something beyond that, for example, reaching into the planning process, he or she is behaving in a manner which is unacceptable and would undermine public confidence in him or her and the system.
It states, "such as to be inconsistent with the proper performance by the specified person of the functions of the office or position".
It states, "or with the maintenance of confidence in such performance by the general public". There is no question in my mind in the way the Bill is written about its general sense. If I need to make it clearer, I will be quite happy to do so. If it lacks clarity in the way it is written, we can rewrite it. I will look at it but there is no disagreement as we are both trying to achieve the same thing.
I do not want a public servant who is doing his or her job perfectly well but has been guilty of misbehaviour in another area to be able to hide behind the provisions of the Bill's subsections. It is always possible for a politician to make that argument. A Minister for Justice, Equality and Law Reform guilty of a planning irregularity would be covered by the Bill. That would clearly undermine public confidence in his or her capacity to be a Minister. Public servants make an argument within the terms of the formulation of the Bill. I tabled the amendment primarily for the purpose of discussion. As the Minister of State said, we have the same intention.
I move amendment No. 12:
In page 6, between lines 46 and 47, to insert the following subsection:
"(2) Subsection (1) does not apply to an act or omission of a specified person or a person who, in relation to a specified person, is a connected person if it-
(a) relates to a private matter and is unrelated to the functions of the office or position by reference to which the specified person is such a person, or
(b) results from incompetence or inefficiency in the performance of, or from failure to perform, such a function, on the part of the specified person.”.
Under the Bill, as published, the wider remit of the new commission does not just include matters under the Ethics in Public Office Act, such as disclosure of interest statements, ad hoc statements of interest and provision of guidance. It also includes investigation of specified acts, defined in section 4 as acts or omissions of politicians and public officials where the circumstances are such as to be inconsistent with the proper performance of public functions by the person concerned and the maintenance of confidence in such performance by the general public.
For a specified act to be investigated the matter must be of significant public importance. Such matters might concern gifts, investments, financial transactions and planning matters, and, as the Bill stands, would relate to past or current events. Concerns were expressed by Oireachtas committee members that the Bill might be couched in terms so broad as to permit a complaint to be made concerning behaviour not related to integrity. This might be the behaviour of a person in their private life, or relationships. Similar concerns have been raised about the possibility of investigations into the competence of an office holder or official. The fear is that members of the public might complain that an individual's personal life or competence is an issue which would undermine confidence in his or her performance of public duties. Hardly a day goes by that a Member of the Oireachtas or office holder is not accused in the House of incompetence. The commission would be very busy if all these accusations led to complaints. Excluded from the definition of specified act are matters unrelated to the person's functions of office or concerning his or her alleged inefficiency or incompetence.
The Minister of State referred to the fact that the commission is not in a position to consider events that took place before it was formed. He appears to be saying a Member of the House can still be investigated on previous events.
That is as it was drafted. It could be open to that interpretation but I am ensuring that is not the case. People call politicians and Ministers incompetent every day of the week. These are political high balls flying around the place and I am ensuring it is not an issue.
This relates to my amendment, particularly subsection (a) which reads, “. . . is unrelated to the functions of the office or position by reference to which the specified person is such a person.” That seems to be moving somewhat away from what we were saying a few moments ago in so far as it appears to suggest the complaint must relate to the actual performance of the particular office and its functions.
It relates to a private matter and is unrelated to the functions of the office or position by reference to which the specified person is such a person. That is consistent with what I said.
It has been claimed - one is reluctant to be too specific about these issues - during the course of the tribunals in Dublin Castle many of the matters are private and not proper to the consideration of the tribunals. This is not an insubstantial part of the argument likely to be made in defence of anyone against whom a complaint is made. They will probably argue it has nothing to do with the performance of their job, that they are perfectly capable of doing it, notwithstanding the fact that there might be something in their "private arena" that is not quite right. We need to be careful. If public officials or politicians are guilty of the sort of behaviour we are setting out in the Bill as being inappropriate, then the commission process should be brought into play, whether what is proposed is specific to the performance and duty of the politician or public servant.
I take the view that an official or politician involved in trying to bribe or pay an official in some other area to do something for him or her is covered under the Bill.
It would not be related to the functions of the position by reference to which the specified person is such a person.
That relates to a private matter. I would not consider it to be a private matter, nor do I consider what people are trying to hide behind to be private matters. These issues have been clearly linked to very public matters.
We need to give this matter more thought to ensure we get it right.
Amendments Nos. 13, 18, 19, 21 and 22 are related and may be discussed together.
I move amendment No. 13:
In page 6, between lines 48 and 49, to insert the following subsection:
"(3) (a) Subject to paragraph (b) a complaint to the Commission under this section which meets all the criteria set down in this section shall enjoy absolute privilege.
(b) Where the Commission finds that the complaint was made maliciously or was without foundation then no privilege exists.”.
This amendment proposes to provide absolute privilege for a complaint in any documentation or submission made in support of a complaint. However, should a complaint turn out to be completely malicious or vexatious, it would not enjoy that privilege. The amendment seeks to provide cover for those making a legitimate complaint and remove it from those making an illegitimate complaint. The Minister of State in his amendment is probably trying to meet the requirement.
Subsection (7) gives the right to the person against whom a complaint is being made when dealing with the inquiry officer to refuse a request to produce documents and decline to answer questions. This is simply acknowledging their rights under normal law. I felt it necessary, in order to be clear about the prima facie requirement, that we should state that simply because one does not produce a document or refuses to answer questions, this does not in itself establish there is a prima facie case. In other words, there needs to be positive clear evidence of wrongdoing before the inquiry officer or process is brought into play.
Deputies Mitchell's and McGrath's amendment reads, ". . . a complaint to the Commission under this section which meets all the criteria set down in this section shall enjoy absolute privilege." This presumably means a complaint about a specified person in regard to a specified act should enjoy absolute privilege unless made maliciously or without foundation. A person making a complaint to the commission will enjoy qualified privilege in regard to the making of a complaint. In addition, we are providing by way of Committee Stage amendment No. 18 for protections against civil liability or disciplinary action where a person makes a legitimate complaint. This approach should address the Deputies' concerns in amendment No. 18.
The new section will not be inserted before section 4. This arises from the Taoiseach's statement on ethics issues in December 2000, which I signalled on Second Stage. The important feature of amendment No. 18 is that a complaint to the commission or a 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 furnished misleading information to an inquiry officer, the commission or a clerk of a committee.
Subsection (3) provides that the provisions of the Unfair Dismissals Act, 1977, will apply to dismissal of an employee who makes a proper complaint under the Bill and such dismissal will be deemed an unfair dismissal for the purposes of the 1977 Act. Subsection (4) defines disciplinary action for the purpose of the section. It also encompasses actions taken in relation to other than a complainant's employment intended as a punishment. It also covers third party actions taken against a complainant at the instigation of the person subject to the complaint. In that circumstance, both the investigator and the person taking the action will be deemed to have taken the disciplinary action involved.
We may wish to come back to this matter on Report Stage to deal with remedies and penalties to apply where an employer takes inappropriate disciplinary action against a person.
I accept the Minister of State's amendment No. 18 in lieu of my amendmentNo. 13.
On amendment No. 19, one of the extraordinary things I found in regard to the complaint made against me under the existing legislation was that there was no procedure set out. I could have played ducks and drakes with the commission because there is no procedure in law for making or processing a complaint. Despite the questions of natural rights and so on, there is often no appeals procedure to deal with a decision with which someone is unhappy. The procedure by which complaints will be considered by the commission needs to be set out either in the Bill or by giving the Minister powers to draw up regulations. There is also a need to provide for an appeals mechanism. If there is not such a mechanism, the legislation will be found to be unconstitutional. The procedures on how to go about processing and answering a complaint and how it will be heard need to be set out. The commission confirmed to me that procedures are not set out in the Standards in Public Office Bill.
This response may be of some help to the Deputy. Regarding procedures, the Ethics in Public Office Act, 1995, provides that the commission and the committees should decide on the details of their internal procedures in relation to complaints. That is especially so in sections 32 to 36. The relevant provisions of the Ethics in Public Office Act, 1995, specify a wide range of areas in which they should determine such procedures. This seems appropriate as it is only these bodies which will over time develop an expertise in relation to the processing of complaints.
Moreover, the Bill makes a number of additions which make the skeleton of the complaints procedure more explicit than before. There is no explicit requirement for publication of these procedures. However, one would expect that the commission or committee would make clear the procedures they intend to follow in a particular case. If it would ease the fears of Deputies, we could look into the possibility of providing, on Report Stage, that where the commission or committee had decided on the procedures to be followed generally, or in relation to particular cases, these procedures could be published. It is provided that this would not reduce the discretion available to them to adjust procedures to suit the cases that might arise.
Surely, a person against whom a complaint is made has to know the procedures by which that complaint is considered. It is a fundamental point. There is no set procedure.
Deputy Mitchell is right. We should set this out in some detail, or at least provide that the procedures be set out in the regulations. If a golf club wants to throw a person out it has to observe fair procedures. If it does not do so, it is liable to be reviewed judicially. It is not inconceivable that a Member of the House would seek to have a judicial review of the process if he or she felt that his or her standing with colleagues, or the public, was being seriously affected by a finding with which he or she did not agree. If the process is not transparent, we will have a difficulty.
I do not want to set up a situation where the Minister sets out what the procedures should be. There is perhaps a case to be made that when the procedures are set down they should be published. People should know what they are. I should not do it, it should be left to the committees to set up their own procedures.
Perhaps we need to put a positive provision in the Bill to make——
That is what I have signalled. I will look at this for Report Stage. I do not support a position where the Minister sets out what the procedures should be. I will come some way to meet the point made. We may include some provision to ensure that when the commission meets, it must set out what the procedures are and they must be published.
Something like that needs to be done, otherwise there would be scope in the legislation for a guilty complainant to avoid or prolong the issue by taking judicial review procedures. There could be a challenge to the lack of procedures. We are facing a general election in the not too distant future. A person could go to court for long enough to get through that election. There are no procedures at present. In the DIRT inquiry, the ruling of the courts in relation to the public accounts was that there must be fair procedures. They must be clearly understood.
I will look at it.
I move amendment No. 14:
In page 6, subsection (3), line 50, to delete "investigation of" and substitute "inquiry into".
The third amendment to section 4 does not have any substantive effect other than to ensure consistency of expression in sections 4 and 5 of the Bill. It is purely technical.
I move amendment No. 15:
In page 7, subsection (4), line 4, after "may" to insert "take no further action in relation to the complaint or".
I want to make it clear that the commission has the discretion to, at an early stage, take no further action in relation to a complaint. The Bill says that "where the subject matter of complaint made or referred to the commission is not in the opinion of the commission of sufficient gravity to warrant investigation, the commission may refer the complaint to. . . " It then goes on to specify to whom it may be referred. I want it also made clear that it can decide to take no further action. This is meant to be used in circumstances where the inquiry officer reports back having completed his or her inquiry. The commission may then take the view that it does not warrant further investigation but that there may be something to it. Therefore, it should be referred to a committee. The Bill needs to allow the commission the explicit power to decide whether a matter goes further.
I agree with the Deputy. The amendment is a good one. I need to look at it and will come back to the Deputy on Report Stage. His point is understood and accepted.
I move amendment No. 16:
In page 7, between lines 35 and 36, to insert the following subsection:
"(6)(a) Where a person raises publicly, queries or doubts regarding the accuracy or completeness of a declaration by any person covered by the provisions of this Act, without first making a complaint either to the Standards in Public Office Commission or the Committee on Members’ Interests, and awaiting a finding thereon, shall be guilty of an offence.
(b) In the case of Members of either House of the Oireachtas, to raise a query or doubt publicly about another Member’s declaration shall be a breach of the Code of Conduct to be approved under this Act unless the matter is first raised by way of complaint with either the Standards in Public Office Commission or the Committee on Members’ Interests, as appropriate, and a ruling has been made thereon.
(c) A declaration referred to in paragraphs (a) or (b) means a declaration under the Principal Act as amended or the Act of 1997 as amended or this Act.
(d) Where a person is guilty of an offence under this section:
(i) The person, other than a Member of either House of the Oireachtas, shall be liable on summary conviction to a fine not exceeding £1,000.
(ii) Where the person is a Member of either House of the Oireachtas and the offence is committed outside either House then the terms of subparagraph (i) of this paragraph shall apply mutatis mutandis.
(iii) Where the person is a Member of either House of the Oireachtas and acts, within the House of which he is a Member or a Committee thereof, in a manner which, if committed outside the House, would be an offence the matter should be dealt with by the Committee on Procedure and Privileges of that House under the terms of the Code of Conduct adopted under the provisions of this Act.
(iv) Proceedings for an offence under subparagraph (i) and (ii) of this paragraph shall not be instituted except by, or with the consent, of the D.P.P.
(v) Nothing in subparagraph (iv) precludes the Commission or the Committee on Members’ Interests from making a recommendation to the D.P.P. or from deciding, where it deems the offence relatively minor, not to refer it to the D.P.P.”.
This Bill is deficient in not stating that low standards can apply to the complainant as well as to the person complained of. If Members make use of another Member's declaration by publicly querying it or casting doubt on it to make political or other charges, that in itself is a low standard if there is no basis for that query. The only way for proper adjudication on a query is if it goes before the commission or the Committee on Members' Interests. What is proposed - this is in everyone's interests - is that where a person has a doubt on the completeness or accuracy of a declaration by any person covered by this Act, he or she should raise the matter by way of the complaints procedures set down. To do that in any other way should be an offence. In other words, to make a political charge against a fellow Member would be an offence.
Members can make a charge in the House and that can be dealt with by the Committee on Procedure and Privileges. If they make such a charge outside the House, that constitutes low standards. There have been several examples of this in recent months. I have been the butt of this sort of thing although I do not want to personalise this matter - I have said this several times in the past. We want to raise the standard of politics. If a Member has a genuine doubt about the actions of another Member, it should be required that he or she pursue the matter through the complaints procedure and in no other way.
This subsection creates an offence where a person publicly raises queries or doubts about the accuracy or completeness of a declaration defined in paragraph (c) to include an Ethics in Public Office Act or Electoral Act declaration. Unless that person has first made a complaint to the commission, and while the purpose behind this proposed provision may be understandable, it amounts to a censorship provision and as such it should be treated with care.
The following points can be made in relation to the proposed provision: it could have the effect of stifling debate; it could hamper journalists who wish to make fair comment; and it would force discussion underground so that issues would be dealt with via the rumour mill rather than in the open. There are other remedies available. It has been a constant theme in tonight's debate that there are no other laws except this law. However, there are other remedies available to those whose reputation is maligned in public, for example, through the slander and libel laws. It would not be appropriate to accept this amendment. I understand Deputy Jim Mitchell's position and the points he makes. However, it is very difficult to stifle the making of political charges and counter charges.
This does not stifle political charges, it provides a proper mechanism by which they can be adjudicated on fairly. I do not want to labour my experiences in the past few months. However, Deputy Roche has virtually made a career out of raising the most spurious questions - he did so with Deputy O'Malley in connection with another matter.
Jail might be a bit strong.
There is no remedy. I was encouraged by others to respond in kind to Deputy Roche, his associates and other Members of the Dáil. I told them I would do no such thing because I did not want to descend into the sewer that he had occupied. I merely mention this as a very serious point of reference for the future. We do not seek to stifle debate nor to stifle fair reporting of debate, we seek to prevent outrageous reporting of outrageous complaints that have no basis in fact. Why should we not do that? We are addressing standards in public office which apply equally to Members who cast doubt on the integrity of another Member without possessing a scintilla of evidence. There should be provision for dealing with such low standards. If the Deputy concerned had made the comment in the House, he would have been identified by the Committee on Procedure and Privileges and forced to apologise in the House. However, because he said it outside the House, there is no remedy. There should be a remedy.
It would be better to have a preventive step in place. This proposal would create an alternative route for making genuine complaints. An earlier amendment which was agreed to means that if a complaint is found to be vexatious and frivolous it will not be covered by privilege. That is the way it should be. If something is said outside the House it receives a political charge. In effect, however, there is no means of remedying it. We would do a great service to other Members and future Members if it was clearly spelt out that if a Member has bona fide questions he or she wishes to raise about another Member he or she should do so in a proper manner, not in a way that is perhaps glib and funny and that damages an opponent at the time but which is not in anyone's long-term interests.
I am trying to think this through. It is already the case that making an allegation outside the House about a Deputy, public servant or anyone else leaves one open to being sued under the libel laws. Deputy Mitchell appears to put the declaration on a pedestal by seeking to make it a criminal offence to make a certain kind of allegation about the declaration, for which one cannot only be sued but jailed. He is saying that there is a separate complaints procedure to deal with these allegations and people should be pushed towards availing of that option. I agree, but to make it a criminal offence to make allegations of that nature is to use a much too heavy hammer.
I accept that point. I am seeking to require Members to observe the same rules regarding their behaviour outside the House as apply inside the House. It is very reasonable to ask that if a Member has a bona fide question about the accuracy or completeness of another Member's declaration, it should be done in a proper manner through the complaints procedure now provided.
I have heard Deputies from all sides make extremely serious charges inside the House under privilege which they would not make or repeat outside the House for obvious reasons.
If they make the charge inside the House, they can be referred to the Committee on Procedure and Privileges and forced to apologise and withdraw it. That has happened on a number of occasions though not in the recent past.
I cannot recall any such occasions.
It has happened although not often enough. The privilege of the House is very seldom abused because there are rules about it. Let us take the example of a rhetorical question put by one Deputy asking if another Deputy has questions to answer. The way a question is phrased can cost——
I understand where the Deputy is coming from but I wonder how we can do this without seriously sanitising political debate. It requires taking political debate out of the political arena.
It has nothing to do with political debate.
Everything would be referred to the commission. Any time a Member made a comment or accusation it would be referred to the commission.
It is one thing to argue politically about matters but another to raise doubts about the personal integrity of a person. If there is substance to the allegation there is no reason not to use the commission. It will only arise in the future when there is no substance to it and it is reported almost as fact.
I have to accept that.
We are talking about standards in public life. That kind of thing is very low and damages the body politic generally.
Some people make a career out of it.
It is wrong. One of the things I have observed in relation to the tribunals is that every day's evidence can be raised in the Dáil as if it is fact. There are commentaries, editorials and anonymous articles in the newspapers which treat the latest allegation as if it was true even though some witnesses may have given contradictory evidence only a few days or weeks previously. There is something seriously wrong there. If we are serious about seeking to raise standards in public life we will have to stop misusing our freedoms by casting doubt on the integrity of other Members without justification.
I suggest that the issue of requiring Members in the first instance to make complaints of this kind through the commission procedure be considered in the context of the code of conduct for Members of the Oireachtas. Perhaps that is the proper forum for the matter.
What about the point made by Deputy——
Deputy McDowell considers the Dáil code to be the way to deal with this matter. This legislation applies to everybody so I am not sure if it can be done in the context of this legislation and if it would make good legislation.
It provides for a code of conduct for the Members of each House.
What about everybody else?
It can be applied to everybody else. Members of either House are unlikely to make charges against people outside the Houses because people outside are not considered to be public personages in the way we are. We are regarded as fair cop for any comment. We referred to the code of conduct in the motion.
There is provision for a query to be raised provided it has substance or, in the words of the Minister, it is made in good faith even if it transpires that there is no substance to it. However, where it is manifestly in bad faith, malicious and unfounded, it should be an offence.
There is an aspect of the matter that concerns us as politicians in the public eye. In that regard, the only way to proceed is by way of the code of conduct.
If the Minister can give an assurance that there will be some provision in the code of conduct, I will be very happy. There is none in the draft code of conduct.
That is a matter for the House, not for me. I am not trying to evade the issue but I do not have a role in the drafting of the code of conduct.
That is a little disingenuous. The draft code of conduct will have to be debated in the House and I presume Deputy Cullen will be the Minister presiding over it.
Probably.
If the Minister was prepared to say he would, in principle, support or encourage a provision such as the one I am advocating for the code of conduct, I would be satisfied.
I will think about what we discussed and come back to Deputy Jim Mitchell on Report Stage to clarify my position. I will not accept the amendment, but I accept the general principle.
I accept what the Minister is saying, but we all know that we are tarred with the same brush used for a small minority of politicians who have done wrong and this is exacerbated by our own treatment of each other. We are providing a legitimate way of making complaints and having them considered and we should address the question of breaches of minimum standards. I will withdraw my amendment on the basis that the Minister will consider the matter on Report Stage.
I move amendment No. 17:
In page 7, between lines 35 and 36, to insert the following subsection:
"(6)(a) Documents submitted to the Commission in pursuance of a complaint or rebuttal there of shall be exempt from the provisions of the Freedom of Information Act, 1997.
(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.”.
The Freedom of Information Act covers all documentation provided to the commission on foot of a complaint. If, for instance, to be helpful, a complainant made confidential information available or if a person rebutting a complaint made confidential information available, it would appear that such information would have to be published if the Freedom of Information Act requested it. That is inimical to the Act and people might resist it by not allowing such information go to the commission on the basis that it will be publicly exposed. I am providing that they should be exempt from the Freedom of Information Act, except when the commission believes it necessary to publish the information to support its decision. It is a reasonable amendment, touching upon things I have learned in recent months.
The amendment has the effect of exempting material supplied to the commission in pursuance of a complaint or rebuttal thereof and imposing a "no publication" rule, except where the commission deems necessary for the purposes of its decision. To deal with the latter effect first, the commission is required in many cases to make a report to the Houses or other persons, not simply a decision. It would not be appropriate to narrow the scope of such reports. Apart from anything else, a House of the Oireachtas or other person may have to decide on disciplinary measures regarding a person and would therefore need a full report from the commission. As regards exemption from the Freedom of Information Act, the Ethics in Public Office Act, 1995, contains confidentiality provisions which will continue to apply to the new commission. These are set out in section 35. The Freedom of Information Act does not override these provisions.
It is clear that if there is a complaint before the Committee on Members' Interests, because it is a committee of the House, the Freedom of Information Act does not apply. It does not apply to committees of this House or papers supplied thereto; it applies to the commission. Very sensitive information, which might be of value to the commission on a confidential basis, supplied by either source, could subsequently become public knowledge. That fact may encourage people not to provide information or give them a reason not to do so. Why should the same rules not apply to the commission that apply to the Committee on Members' Interests? It would be reasonable.
I was not aware of the difference between the two.
I was looking at the various bodies that can receive reports. The House and the secretary general of a Department can receive them. In the case of the special adviser, the office holder for whom he or she is acting as a special adviser can receive a report. Clearly, such people should be given full reports. The question then arises as to whether those individuals who receive a report should publicise them or publish them in full. I am not sure if we want to leave the discretion with the individuals receiving reports. That is the position relating to the Ceann Comhairle, for example. If he receives a report, he can decide whether to release it. There was a recent test case in that regard.
I am inclined to agree with the general principle of Deputy Jim Mitchell's proposal, namely, that we should not have an automatic freedom of information right, but I accept the point that it does not exist anyway.
That is a fact.
For instance——
I am sorry. Deputy Jim Mitchell is talking from first-hand experience in this regard.
I am also borrowing on my experiences as Chairman of the Committee of Public Accounts, particularly in the DIRT inquiry. We received reams of documentation and decided that only a certain amount of it was pertinent to the complaint at issue. The selected documents were called the core documents and they were circulated for each module of the inquiry to the relevant people, not to the remaining people.
Even then, only the documents that were published as part of the hearing and referred to therein were published as part of the report. The committee wanted to retain all the papers supplied for historical purposes so that there would be a full understanding of the context in which it made its decisions. However, the committee has been advised that, even in the future, the other documents cannot be published. This happens in the courts as well.
Another rule stipulates that no Freedom of Information Act requests apply to papers supplied to a committee. That is where the Committee on Members' Interests is covered. In the case of the commission, the same coverage does not obtain and there should be some provision in this regard. Take the poll question that, unfortunately, I was caught up in and had nothing to do with initially. The people who conducted that poll were happy to give the names of those who supported it, provided it would not be published. They did not want the names of the individuals concerned hounded by the media, but they could not be given an assurance by the commission to that effect.
We will talk to Deputy JimMitchell about it.
I do not want to prolong the discussion, but am I right in saying that the commission would, in that case, report to the Ceann Comhairle, who would have discretion as to how much he makes public?
No. What happens is that if the commission gets a freedom of information request for the information, it has to publish it.
I am thinking in terms of the publication of the report, or the decision, as it is called in Deputy Jim Mitchell's amendment.
It could be counterproductive to the effectiveness of the commission if it is not given discretion, as provided for in the amendment. That is the best way to handle the problem.
The Ethics in Public Office Act does better. It prohibits disclosure of information received under the Act. I am not sure if this applies to the Electoral Act, but I can check.
Deputy Cullen is correct in thinking the same provision does not apply to the Electoral Act. The Ethics in Public Office Act is adjudicated upon by the Committee on Members' Interests.
I am basing this legislation on the Ethics in Public Office Act, which prohibits the disclosure of information received under the Act.
Will the Minister assure me on that point?
Yes.
It is the Electoral Act and——
Yes, it is only now the penny has dropped. I will come back and report on it anyway. To reassure the Deputy on that point, it is on the Ethics in Public Office Act, which is explicit, that I am basing this. The Electoral Act to which the Deputy refers——
The Minister is amending the principal Act and the Act of 1997 so I was not sure which one he was talking about. I will withdraw the amendment on the basis that the Minister will look at it on Report Stage.
We agreed at the outset that we would break midway. I propose we suspend now for half an hour.
I move amendment No. 18:
In page 7, before section 5, to insert thefollowing new section:
5.-(1) Where a person ('the complainant')-
(a) in good faith makes a complaint under this Act or the Principal Act to the Commission, a Committee or a Clerk, and
(b) reasonably believes that the complaint has been made to the appropriate person and is one that falls to be investigated under the Principal Act, no cause of action shall lie against the person, and no disciplinary action shall be taken against him or her, in respect of, or of any matter arising from-
(i) the complaint,
(ii) the furnishing of information to the Commission, a Committee, a Clerk or an inquiry officer in relation to the complaint,
(iii) the performance by the Commission, a Committee, a Clerk or an inquiry officer of a function of it or of his or hers under this Act or the Principal Act in relation to the complaint.
(2) Subsection (1) does not apply to a complainant who makes a complaint referred to in that subsection knowing it to be false, misleading, frivolous or vexatious or who furnishes information to the Commission, a Committee, a Clerk or an inquiry officer that he or she knows to be false or misleading.
(3) Where an employer dismisses an employee to whom the Unfair Dismissals Act, 1977, applies and the dismissal constitutes disciplinary action taken in contravention of subsection (1) in relation to the employee, the dismissal is a dismissal deemed for the purposes of that Act, by virtue of section 6(2)(f) thereof, to be an unfair dismissal.
(4)(a) In this section ’disciplinary action’ means an act-
(i) that is done in relation to a complainant, whether as respects the employment of the complainant or otherwise, and
(ii) that is wholly or mainly intended as punishment or retaliation for the complaint concerned, a matter referred to in subsection (1) or an action referred to in paragraph (ii) or (iii) of that subsection.
(b) In paragraph (a) the reference to the doing of an act includes a reference to the making of an omission.
I realise this amendment was discussed with amendment No. 13, but may I quickly ask if it is possible for something vexatious to be done in good faith?
I suppose it is if someone makes a complaint they believe to be genuine.
That person would not be protected by this section.
The complaint would probably not be vexatious in such circumstances.
If it was made in good faith.
A vexatious complaint is one deliberately made in the full knowledge of its nature. If someone makes a complaint in good faith, it should be taken in good faith. It may turn out to have been vexatious, even if it was made in genuine circumstances.
There are different tests. Without getting too legalistic, the vexatious nature or otherwise of a complaint is objective, whereas to examine the good faith of a complaint is to look at the intentions of the complainant. If someone makes a complaint in what they consider to be good faith, that is fine. The word "vexatious" refers to something the commission regards as frivolous or unimportant.
The definition of vexatious covers more than the Deputy believes, as it includes behaviour specifically intended to be troublesome. The word "frivolous" is not as strong.
The Minister of State knows what I am getting at.
I do.
I refer to behaviour not considered terribly important and perhaps frivolous. As long as it is done in good faith, the complainant should be protected. I sense the clerk is unhappy as we should not be discussing this amendment having already done so.
If a complaint were frivolous, it would get nowhere.
I move amendment No. 20:
In page 7, before section 5, to insert the following new section:
"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.".
As far as I can determine, the issue of anonymous complaints is not dealt with in the Bill. It is necessary to state as a general rule that the commission will not deal with anonymous complaints, although there might be exceptional circumstances where anonymity is needed. In such circumstances it is reasonable that a complainant should disclose his or her identity to the commission which may decide to keep it private. A provision for anonymity might be necessary in the case of someone whose job means it may be damaging for them if it was known they had made a complaint against a colleague or a boss. Such a person would reasonably expect the commission to keep his or her identity private. When we discussed this issue previously, we considered the possibility of someone working in a bank whose terms of employment would be breached were they to reveal information. The disclosure of such information would be justifiable if it was a public service, but this area is currently unprotected by law. To preserve anonymity in cases such as I have outlined would be reasonable.
The Deputy has made a good point. I will consider seriously this important issue before Report Stage if the amendment is withdrawn.
I move amendment No. 21:
In page 8, subsection (2), between lines 23 and 24, to insert the following:
"(d) interview such other persons or carry out such other inquiries as he may deem necessary or desirable to form an opinion as to whether a prima facie case has been made in respect of any complaint.”.
I realise this amendment has been discussed, although I do not remember the discussion. This section is prescriptive regarding the inquiry officer's limits, as he or she can only interview the complainant and the person against whom a complaint has been made. My reading of this section is that it does not give inquiry officers the power to make any other investigations, to interview anybody else or to seek information from anybody else. We should not be as restrictive or prescriptive regarding what we allow the inquiry officer to do in establishing whether there is a prima facie case.
We have already discussed this.
I do not recall our earlier discussion, but I appreciate it took place.
The inquiry officer's mandate under section 5 is to interview and to take statements from the complainant and the person against whom a complaint has been made. Deputy McDowell's amendment suggests that this be extended to allow the inquiry officer to make more extensive inquiries as appropriate. If he or she is to do so, it will be done in accordance with instructions from the commission. I have no difficulty with the principle of the amendment, which I will consider and return to on Report Stage.
The function of the inquiry officer is to establish whether there is a prima facie case, so the officer may have to interview others whose names come up during the course of a complaint. The officer’s interviews should not be confined to the complainant and the person against whom a complaint has been made.
The Deputy is right.
I move amendment No. 23:
In page 10, before section 7, to insert the following new section:
"7.-(1) Where following an investigation by the Commission under section 23 of the Principal Act or an investigation by a Committee under section 9 of that Act, the Commission or the Committee, as the case may be, is of opinion that, having regard to the findings of the Commission or the Committee, as the case may be, and all other relevant matters (including failure to co-operate with or provide assistance to or knowingly giving false or misleading information to the Commission or the Committee), there are sufficient reasons rendering it equitable to do so, the Commission or the Committee, as the case may be, may, either of its own motion or on the application of any person appearing before it, order-
(a) that the whole or part of the costs necessarily incurred, by any person appearing before it by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order, or
(b) that the whole or part of the costs incurred by it, as taxed as aforesaid, shall be paid to the Minister for Finance by any other person named in the order.
(2) Any sum payable pursuant to an order under this section shall be recoverable as a simple contract debt in any court of competent jurisdiction.
(3) Any sum payable by the Minister for Finance pursuant to an order under this section shall be paid out of moneys provided by the Oireachtas.".
Under the Bill as published costs are payable to a person investigated by the commission or committee only in restrictive circumstances where a complaint is not upheld and was not reasonably made or is frivolous or vexatious. The maximum award of costs is £1,500 which is payable by the person who made the complaint rather than the State. Having considered the matter and the views expressed by Deputies during the Second Stage debate, the Government decided it would be unjust that a person could be put to considerable expense in defending himself or herself before a committee or the commission and may then be found not guilty of any wrongdoing, but would not be recompensed for his or her legal costs. An amendment to the Bill is accordingly proposed to allow for payment by the State of reasonable legal costs. Provision will also be made to ensure that costs charged are appropriate to the case by way of referral to the Taxing Master. The possibility that costs of the commission or committee investigation would be borne by a person who had appeared before it is also being provided for in the amendment.
My amendment attempts to do something similar. I am not sure I would define it exclusively as legal costs or that we want to encourage people to have legal representation for the purposes of this, but they might be required to get an accountant to do some work. It seems reasonable to pay the accountant or to cover the accountant's costs even if legal representation is not involved. I am not sure the section, as drafted, would allow that. It would be preferable if we did not import the concept of legal costs into this, but the general principle that if someone incurs——
I can explain or define it further on Report Stage.
The Minister of State is determined to get through it this evening.
The Deputy knows my form and he knows I will say no or yes if I think something is reasonable. The last few points are reasonable and the principles involved are fine. There are people who use an accountant, rather than a solicitor, almost exclusively as the main person.
That is why I do not want to bring in the legal profession.
I will ensure the section does not preclude the valid and reasonable point the Deputy makes.
Amendments Nos. 26 to 29, inclusive, are related to amendment No. 24 and all may be discussed together by agreement.
I move amendment No. 24:
In page 10, lines 22 to 24, to delete subsection (1) and substitute the following:
"(1) 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.".
A number of amendments to section 7 are proposed which take account of views expressed in the Oireachtas committees - I signalled this on Second Stage - and provide an advisory role for the commission and select committees in relation to the codes of conduct which will apply to the various categories of person covered by the Bill. A meeting was held to discuss the Standards in Public Office Bill in July 2000 and it was attended by Department of Finance officials. Members of the Dáil select committee expressed strong opposition to the codes of conduct for Members of the Houses being drawn up by the new standards in public office commission, as provided for in the Bill as published. The proposed code drawn up by the commission was in line with comments made by the Joint Committee on Finance and the Public Service in 1999, which suggested that drafting a code of conduct for members of public services should be the first job of the proposed new commission. The Government has no difficulty with allowing for the drafting of the code by the Houses. As Deputies are aware, the Dáil Committee on Members' Interests has completed a report and draft code. This amendment to section 7 of the Bill is accordingly proposed.
Amendment No. 28 makes consequential amendments to subsection (9) of this section. Section 7(9) gives the Minister, the commissioner or the Government, as appropriate, the option of deciding that an existing code of conduct satisfies the requirements of section 7. Thus, for example, it would be open to the Minister for Finance to hold that the draft code of conduct and behaviour for the Civil Service, which is currently being considered by the Joint Committee on Finance and the Public Service, fulfil the requirements of section 7. It meets the issues we discussed on Second Stage.
It seemed strange that the commission would draw up the code of practice for Members but office holders have a different way of doing their business. Two different standards often apply to Members and office holders, whether it relates to pensions or something else. It seemed strange that the commission would be able to impose a code of conduct on Members, albeit after consultation. This is the right way forward. There should be tighter controls and the commission should have more input into what happens for office holders. The commission, in consultation with the Government, should draw up the code of conduct for office holders.
Is the Deputy saying the commission should draw it up in consultation with the Government?
The same thing should apply across the board. The committee will draw up the code of conduct for Members.
The Houses of the Oireachtas will draw it up, not the commission.
He is reversing it so the committee can draw it up in consultation with the commission.
We are doing that in light of the debate on Second Stage. I have no difficulty with that.
I move amendment No. 25:
In page 10, subsection (3), line 30, after "Commission" to insert "and such representative associations or trades unions as may be relevant or appropriate".
The amendment is self-explanatory. Its purpose is to ensure that when dealing with a code of conduct for the Civil Service, particularly for those who will be caught by this Act when it is passed, there should be consultation with the representative associations or trade unions which represent the Civil Service. It seems a reasonable principle. If we are drawing up our own rules in consultation with the commission, the Minister, when drawing up the rules for the Civil Service, should have a legal obligation, where relevant, to consult with the trade unions which represent civil servants. Perhaps the Minister will clarify if any change in the code of conduct for civil servants, as the years progress, automatically becomes part of the new terms of employment of a civil servant and whether that amounts to a unilateral change of contract. I am not clear about that. I know the code of conduct for Members is specifically referred to as a guideline and we do not have terms or conditions of employment like civil servants. Is the code of conduct for civil servants a term of employment or a guideline? If it is breached, is a civil servant in breach of a term of employment?
It is a term of employment.
If a civil servant breaches the code of conduct, he or she is in breach of his or her terms of employment.
Exactly.
Does it follow that it cannot be changed unilaterally for someone already employed in the Civil Service?
If the Minister changes the code, there will not be a problem.
Is the Minister of State sure?
Yes.
What is the Minister of State's view on the amendment?
The amendment proposes to require the Minister to consult with trade unions or staff representatives before imposing a code of conduct on public service staff. There might be a difficulty consulting every trade union or representative group about a code of conduct which will have widespread applicability throughout the public sector. However, there would be no difficulty with an undertaking that the Department of Finance would consult widely with the public sector unions when drafting the code which the Minister will then apply. It is already happening.
The Minister would abolish trade unions in the morning if he got half a chance.
That is unfair.
I do not think it is unfair. He would not like the idea of being obliged to consult them. It is not his natural way of doing things. The people who represent the trade unions——
It is already happening.
I appreciate it is happening in the context of what we are discussing at the Committee on Finance and the Public Service, but there should be an obligation and consultation with the representative associations or the unions, not agreement, if we are to change people's terms of employment. We might have a vote on it if the Minister of State does not agree.
I will do so on Report Stage if possible. It will not cause the world to fall apart. It is happening, but the Deputy is trying to ensure that there is an obligation to do so. I could never envisage a Minister for Finance, or anyone in that position, failing to consult. The world would end if that was the case.
The previous amendment gave the committees of the House which are, in effect, representatives of Members who will be affected by this issue, responsibility for drawing up the code and presenting it to the commission. Deputy McDowell's amendment proposes that there will be consultation with the people concerned through the representative associations. This is the same as was done to the other people concerned. It is logical to include this provision to be fair to all groups. There is an obligation on the Minister of State to build this into the legislation.
I have answered this issue.
I will withdraw the amendment on the basis of the Minister of State's comments.
I move amendment No. 26:
In page 10, between lines 43 and 44, to insert the following subsection:
"(5) A code of conduct under subsection (1) shall, if the House concerned so declares by resolution, apply to its members on and from the date specified in the resolution, and such a code of conduct shall, if the House concerned so declares, cease to apply to its members, on and from the date specified in the resolution.”.
I move amendment No. 27:
In page 11, subsection (6), line 4, to delete "with which the code is concerned" and substitute "to which the code relates".
I move amendment No. 28:
In page 11, lines 21 to 25, to delete subsection (9) and substitute the following:
"(9) A code of conduct under subsection (1), (2) or (3) shall not make provision in relation to any matter in so far as, in the opinion of-
(a) in the case of such a code under subsection (1), the Committee concerned formed after consultation with the Commission, and
(b) in the case of such a code under subsection (2) or (3), the Government or the Minister, as may be appropriate, adequate provision in relation to that matter is made in an existing code of conduct or in existing guidelines.”.
I move amendment No. 29:
In page 11, between lines 28 and 29, to insert the following subsections:
"(11) The Commission may, at the request of an office holder, give advice to the office holder-
(a) in relation to the application or non-application of a code of conduct drawn up under subsection (2) or (3) or any other code of conduct or any guidelines to any particular case or circumstance specified by the member and affecting or relating to him or her or to any conduct or proposed conduct of the member, and
(b) in a case or in circumstances where such a code applies or such guidelines apply, in relation to the effect and consequences of such application.
(12) The appropriate Committee may, at the request of a member (other than an office holder), give advice to the member-
(a) in relation to the application or non-application of a code of conduct drawn up, after consultation with it, under subsection (1) or any other code of conduct or any guidelines to any particular case or circumstance specified by the member and affecting or relating to him or her or to any conduct or proposed conduct of the member, and
(b) in a case or in circumstances where such a code applies or such guidelines apply, in relation to the effect and consequences of such application.
(13) Where a request is made under subsection (11) or (12)-
(a) the office holder or member concerned shall furnish to the Commission or, as the case may be, the Committee concerned such information as it may reasonably require for the purposes of its functions under that subsection, and
(b) the Commission or, as the case may be, the Committee shall furnish the advice requested to the office holder or member within 21 days from the receipt by it of the request or, if it is later, from the receipt by it of the information referred to in paragraph (a)
(14) Advice furnished to an office holder or member under this section shall have effect in relation to the person to whom it is given as if it formed part of the code of conduct or guidelines to which it relates.
(15) The reference in section 28(3) of the Principal Act to guidelines published or advice given in writing under section 12 shall be construed as including a reference to a code of conduct drawn up under subsection (1) or (2) and any other relevant code of conduct or other guidelines or advice given in writing under subsection (11) or (12).”.
Amendment No. 30 is deemed out of order as it involves a potential charge on the Revenue.
I understand why this amendment is ruled out of order. However, this comes back to impositions on Members in terms of record keeping and so on. The burden of Members' work is ever increasing. When I first became a Member 12 years ago, the volume of work did not compare with the current situation, yet we are left with one secretary and provision for part-time workers. One often has to call on volunteers and family to step into the breech and do the necessary.
This additional imposition provided an opportunity for the Minister of State to intervene and, perhaps, approve additional secretarial services for Members. It is important that this happens. If this issue is discussed in the Department, will the Minister of State clarify that if additional manpower is to be provided to Members, the decisions as to where these resources should go should be left to individual Members rather than the assistants being provided to the parties? It is often the case that additional personnel approved for parties can develop around the small nucleus of the Front Bench or the leader's office. We all have to fight elections and we all have problems down the line. These resources should be provided to Members.
If a Minister has plenty of back-up in his constituency, it makes it difficult for a backbencher, particularly one belonging to the Minister's party, to compete. If this issue comes up for discussion in the Department, the Minister of State should make the case that any additional secretarial assistance which is being given will, in the first instance, be given to individual Members.
I move amendment No. 31:
In page 11, before section 8, to insert the following new section:
8.-The Commission shall not investigate a breach of a code of conduct unless the provisions of section 4 of this Act have been complied with.
This amendment seeks to provide that we should make it clear that a breach of the code of conduct does not in itself lead to a complaint which is sustained by the commission. It should still have to be combined with a complaint which amounts to a matter of substantive public interest which would deal with substantial amounts of money and so on. A technical breach of the code should not in itself establish a case. It could be argued that this is implicit in the Bill, but I wish to make it clear.
This point is implicit in the Bill. I do not disagree with the Deputy as the matter is covered. I am certain about this.
I wished to ensure that what the Minister of State has said is on the record. It is important that we make it clear that, while the code of conduct is important and free standing, the commission is not being set up solely to adjudicate on breaches of the code which do not amount to substantive matters of public interest.
The commission can take the code into account during its deliberations.
It should do so, but it is not there just to adjudicate on technical breaches of the code.
No.
Amendments Nos. 32, 33 and 34 are related and may be discussed together.
I move amendment No. 32:
In page 12, paragraph (a), line 10, to delete “2000” and substitute “2001”.
Section 9 of the Bill brings back by one month the date on which annual statements of interest under the Ethics Acts are due to be furnished, making provision for the possibility that the Dáil or Seanad may not be in session on such a date. Put simply, the ethics year will now be the calendar year ending on 31 December instead of 31 January. Returns under the Electoral Acts are on a calendar year basis so the move to the calendar year for ethics returns facilitates overall streamlining of these statements. Further streamlining in this regard is provided for in section 18. The Bill was published in June 2000, so section 9 stipulates that the registration date following 31 January 2000 will be 31 December 2000.
I move amendment No. 33:
In page 12, paragraph (a), line 11, to delete “2000” and substitute “2001”.
I move amendment No. 34:
In page 12, line 19, to delete "2000" and substitute "2001".
I move amendment No. 35:
In page 12, between lines 25 and 26, to insert the following:
"(c) the Clerk of each House shall prepare a Consolidated Declaration Form covering the declarations required under the Principal Act and the Act of 1997 so that, in effect, Members of each House shall make a single joint declaration and such joint declaration shall, notwithstanding anything in those Acts, meet in full the requirements of both Acts.”.
This is a simple amendment which notes various Acts to which we are bound - the principal Act, the Ethics in Public Office Act and the Electoral Act. It states that the Clerk of the Dáil shall prepare one consolidated form that Members will be required to complete and on which all declarations are made in one return. As things stand, we have to make two different returns and one can forget from one to the other what one has to do. In addition, the dates can come and pass by, so one may think that one has completed the form when one has completed something else a short time beforehand. We are saying that the Clerk of the Dáil should draw up one declaration form that covers all the requirements and that it should be made available to Members to complete once a year.
I am doing this in amendment No. 38. If the Deputy wants to withdraw his amendment he will see that what he is proposing is covered in amendment No. 38.
I thank the Minister.
I am not sure that amendment No. 38 actually does that. It simply provides that the forms should be issued at the same time but still refers to there being two forms. Is that simply for the purposes of the Acts? Does the Minister intend to put them within one sheet?
No. Deputy McGrath's point is well made. One could have one document in three parts but the amendment takes the point that has been made and which was raised by Deputy McDowell on Second Stage.
Obviously, the way to do it is in one document.
In one document but one may have three different parts to it. I should have made the point that there are different offences for reporting. A breach of the Electoral Act declarations is an offence while a breach of the Ethics Act is not. One must be careful not to get them mixed up. I can still take account of the point that has been made.
I move amendment No. 36:
In page 12, before section 10, to insert the following new section:
"10.-(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
(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 has 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.".
Perhaps the Minister wishes to respond and I will gather my thoughts.
We were trying to discern what the Deputy means. I will give him my interpretation based on what I think he means.
I know what it is now. Does the Minister want me to proceed?
I will give him the response and if we are right we are right.
All right.
Reporting standards mean journalists reporting on matters concerned with Ethics Act declarations and complaints procedures. If the Deputies intend that reporting standards will mean standards of journalists' reporting of Ethic Act issues, the proposed amendment will, in effect, create an offence of misreporting. The motives behind such a proposal may be entirely worthy but the proposal itself moves into territory which we have simply not considered for the purposes of this Bill. In effect, the commission will become the setter of standards for press reporting.
That is an attractive idea.
It is but whether we would get away with it is another matter. Extending this principle further - in fairness, probably further than the Deputies proposing the amendment would consider - might have the Central Bank setting out standards for reporting bank issues or the Garda Commissioner laying down the law on reporting of crime. Taken together with the Deputy's other amendments, it would be a new departure in press regulations. Such a departure would require detailed study and consideration, including in relation to the legal and constitutional aspects which cannot be achieved within the timescale of this Bill. Am I interpreting correctly what the Deputy intended?
I thank the Minister. It is my understanding that there are codes of conduct relating to the reporting of court cases. There are certain standards in terms of what one can report within certain periods and so on. Deputy McDowell would be more familiar with that. As happens in the tribunals, if I make an allegation against the Minister or any of my colleagues, it can be reported fully in the newspapers as if it is accurate and true. Very often the same person can go back in two or three weeks' time, as we have seen, and change what they are saying. Or somebody else will come in and provide evidence that totally rebuts everything that was said. In relation to what is happening here, we are saying that there should be standards governing how any of this would be reported so that the good name of Members or anybody else, including office holders or people concerned with the Act, are not brought into the public arena without there being substantial proven allegations against them. It concerns a set of standards on how reporting of the material that is there would be done.
To be honest, I think it is a bit beyond my capacity but there is an important point to make - the commission can meet in private which is an important aspect. Neither the press nor anybody else would be in attendance. They must use their judgment in that regard.
Yes.
I do not disagree with the point in the sense in which the Deputy is making it. However, it is beyond the scope of the Bill for me to set down standards for press reporting. As I have outlined, the consequences on other areas are undetermined. There are many issues to be considered. I am not saying that we should not achieve it someday but we cannot do so in this legislation.
The current position is that if verbatim reports of Dáil proceedings appear in the newspapers they have absolute privilege. It may be qualified privilege but I think it is absolute. Obviously, if any of us say things outside the House we do not have that privilege and the reporting of what we say does not attract privilege either. Not only does Deputy McGrath want to put Deputy Roche in jail but he also wants to put anybody who reports what Deputy Roche said in jail.
That is a possible use of it.
It may or may not be a laudable aim.
I do not wish to delay the committee but is the Minister deleting section 10?
Yes.
Is that because of the amalgamation performance?
The opposite to what it is, yes.
Is that effectively what it is? I presume the Minister is proposing the deletion of the section because he is amalgamating the forms in section 18, as proposed by amendment No. 38. Am I right in that?
Yes.
I move amendment No. 37:
In page 13, before section 12, to insert the following new section:
"12.-For the avoidance of doubt, and notwithstanding anything in the Principal Act or the Act of 1997, Members of Dáil Éireann shall continue to have access to their offices at Leinster House and the use of facilities normally supplied to Deputies, including secretarial and postal facilities and these shall not be included as part of their election expenditure.".
This issue involved much discussion among Members' interest groups in the House. There is a major difficulty, particularly for Opposition party leaders and spokespersons, in that their notes and other printed material generally remain within the House. At weekends it is not possible to obtain or issue statements and other information via their databases. If a story breaks on a Friday evening, in effect, one is relying on memory or whatever material one may have stored outside the House to respond urgently. The amendment states that there should be access to Leinster House and other offices, particularly for party leaders and spokespersons, at weekends.
I could not agree more with the Deputy. I have proposals in place to do that.
Good. I welcome that. There is also a debate about what happens once an election is called. It particularly affects people in the city of Dublin who have their offices within Leinster House. Can they continue to gain access to Leinster House? That debate is raging at present. There is a certain group that wants to exclude people from Leinster House. How can one shut them off from their own offices? Given the cases of someone with an office here and someone with an office in the constituency, what can happen is unfair. The Minister of the day has full access to all the services and to his constituency office for the period of the election.
A Minister of State is rudderless and without office when the Dáil dissolves. He or she is in the worst of all worlds, beinggone altogether with nowhere to go. The Deputy said something with which a Member of either House would not agree. Wearing another hat, I am trying to do something about the matter regarding the precincts of Leinster House. I presume the Deputy is aware that with the Electoral (Amendment) Bill, 2000, currently going through the Oireachtas, the Minister for the Environment and Local Government is bringing forward amendments in this area. The Bill is due to be debated in the Seanad on 31 June. I fully accept the validity of the issue.
It will address election expenditure and the use of a secretary over the period of the election?
It will be debated in the Dáil and the Seanad.
I am particularly concerned about subsection (2) which appears to give the Minister significant powers. We have previously debated adapting primary legislation by means of regulation and it is something on which I am not keen. Will the Minister explain why he thinks it is necessary in this case?
The section states that the Minister may, by regulation, provide for such, if any, other adaptations and modifications to the principal Acts, the Act of 1997 or any other Act of the Oireachtas appearing to him or her to be necessary or expedient for the purposes of the performance by the commission of its functions under those Acts.
This catch-all power allowing the Minister to amend primary legislation by regulation is unhealthy.
This is a standard provision which will ensure that references to the Public Offices Commission and to the chairman of that body in the Ethics in Public Office Act, 1995, or the Electoral Act, 1997, will henceforth be read as references to the commission allowing it to take on the role and functions of the Public Offices Commission. Section 13 also provides that the Minister for Finance may make regulations, where necessary, for the expedient performance by the commission of its statutory functions. It can only be done in the context of the principle of the Act.
I have seen it before but I do not like the principle of accepting that a Minister can amend an Act by regulation. We will not resolve that this evening.
Is there some difficulty connected with the problems arising in the Abbeylara inquiry? Is it necessary to spell out more clearly the directions under this section? How does the chairman of the commission make a direction?
Section 16(1) provides that the chairman of the commission or other committee of Members interests may direct any person to make discovery under oath of any document. The rules of court relating to the discovery of documents in the High Court will apply.
It occurs to me that certain procedures have to be gone through. There is no condition here that the chairman has to get the permission of anyone else. Apparently, he can act alone and does not have to get the permission of the compellability sub-committee, the Committee on Procedure and Privileges or any other committee. Is the Minister happy that the section in its present form will overcome the obstacles that confronted other inquiries, especially the Abbeylara inquiry?
I am not as familiar with the inquiry as the Deputy. This is a separate statutory provision referring specifically to this commission. I am satisfied in that regard. I am not sure what other issues the Deputy is familiar with. It is separate from the compellability legislation.
It is, but it is similar. It gives the chairman of the commission very strong powers. Regarding the powers of the Committee of Public Accounts and the sub-committee looking into the Abbeylara incident, there is a question of a challenge being made in the courts regarding the efficacy of the procedures followed. In this case clear powers are being given to the chairman without requiring consultation and without setting out procedures.
The High Court rules relating to the discovery of documents will apply.
I was recently privy to a detailed conversation on this matter and it is in the back of my mind that there could be a problem here. Maybe the Minister would look at it again.
The sub-committee on Abbeylara was exercising delegated powers and the difficulty was in the way those powers were delegated from the committee proper. Here we are giving explicit statutory powers to the commission directly. That may not be the point but I put it out there.
We base the powers we are bestowing on those given to the tribunals. They are the very same.
I move amendment No. 38:
In page 15, before section 18, to insert the following new section:
"18.-(1) The forms in which the statements in writing referred to in subsection (1) of section 5 of the Principal Act and subsection (1)(a) of section 24 of the Act of 1997 are to be furnished to the appropriate Clerk and the Commission, respectively, shall be issued by the Commission to members, and the Commission shall ensure that both such forms are issued together to each member and at such times as to ensure to members the maximum convenience in complying with the said sections 5 and 24.
(2) The Commission shall furnish to the appropriate Clerk each statement received by it under the said subsection (1)(a)”.
The forms of statements of interests of Members under the Ethics in Public Office Act, 1995, and on donation statements of Members under the Electoral Act, 1997, will be furnished in composite form to Members by the commission. Members will return the completed forms to the commission and the commission will return the ethics element to the relevant clerk. The new section requires the commission to give Members maximum convenience in complying.
I may wish to return to this on Report Stage to make it clear that on returning the joint form to the commission the ethics part will be deemed to have been returned also. This is what Deputy McGrath and I were discussing earlier.
Is this to give effect to the fact that there will be one declaration rather than two?
There will be one block of forms which might have three parts to it. There are different Acts governing this but there will be just one document.
Until now the Bill reconciled the dates but still required two separate declarations. Now there will be one composite declaration.
It will be composite because under one of the Acts there could be a criminal offence while under others that would not be the case. It could be a three part document. I will come back to this matter on Report Stage.
The Minister of State might usefully consider the issue of criminal offences for Report Stage. I take the case of the Labour Party in the Dublin South Central by-election when it notionally ran over the expenditure limit by £200 and it was referred, as was required, to the DPP who immediately threw it out as trivial.
That point is specific to the Electoral Act which will be dealt with in two days' time.
There are other matters in the Standards in Public Office Acts which criminalise people who should not be criminalised. In many instances, these should be civil offences rather than criminal offences. Very minor issues are being referred to the DPP. The commission should have an option not to refer certain issues to the DPP. The DPP's office was laughing at the idea of trying to send the poor Labour Party to prison.
This raises the somewhat anomalous situation where, if I understand it correctly, non-declaration of a gift is not an offence, whereas non-declaration of an electoral donation is, even though the same amount of money might be involved.
I believe the commission should be given flexibility on whether it should go to the DPP. Under several sections of the principal Act, there is no choice but to go to the DPP, even though the breach may be technical or nominal.
I move amendment No. 39:
In page 15, before section 18, to insert the following new section:
"18.-(1)(a) The Committee on Members’ Interests of Dáil Éireann shall be reconstituted so that it is chaired by the Ceann Comhairle.
(b) The Committee on Members’ Interests of Seanad Éireann shall be reconstituted so that it is chaired by the Cathaoirleach.
(2) The Commission shall consult with the Committees on Members' Interests at least twice a year in relation to this Act, the Principal Act and the Act of 1997 and on matters of mutual concern.".
This goes back to my view about the role of the Ceann Comhairle in the Committee on Members' Interests. The Committee on Members' Interests is normally a sub-committee of the Committee on Procedure and Privileges. I believe the chair of this important committee should be the Ceann Comhairle, who should have the central role of upholding standards both in regard to Members' rights and Members' responsibilities. In the case of Seanad Members, the committee should be chaired by the Cathaoirleach.
The composition of committees is a matter for each House to decide, therefore, there is no need to include in legislation such a provision. In view of the Houses' constitutional duty to regulate themselves, it would appear preferable not to deal with this matter in legislation. The report of the Dáil committee on a code of conduct also suggested changes in the composition of the committees. However, it is a matter for each House to decide.
On the consultation requirement, I have no objection to this in principle, although the matter has not been raised with the current commission. I may consider a Report Stage amendment.
Amendments Nos. 40 and 41 are related and may be discussed together.
I move amendment No. 40:
In page 15, after line 48, to insert the following subsection:
"(3) Subsection (1) applies to a person who is appointed to the office of Attorney General after the commencement of this section at a time when he or she is not a member as it applies to a person mentioned in that subsection with the modifications that the references in paragraphs (a) and (b) of that subsection to the election date shall be construed as references to the date of the appointment.”.
These amendments provide that the same tax clearance requirements will apply to an Attorney General where he or she is not already subject to these requirements by virtue of membership of either House of the Oireachtas. Where a non-Member is appointed Attorney General, he or she will be subject to the requirements imposed by section 19(1) on Members. The section requires persons elected to either House or nominated to be a Member of the Seanad after the commencement of this section to furnish to the commission, first, within nine months of the election date a tax clearance certificate that was issued to the person not more than nine months before or after the election date, or an application statement as defined in section 22(4) issued to the person no more than nine months before or after the election dates and, second, a statutory declaration made by the person not more than one month before or after the election date stating that, to the best of their knowledge and belief, they are in compliance with the tax obligations set out in section 22(1) and nothing in the section prevents the issue to that person of a tax clearance certificate.
Amendment No. 41 will replace the existing subsection (3) of section 19. It caters for Members in a case where a non-Member Attorney General fails to comply with the requirement to furbish a tax clearance certificate. In the case of a non-Member Attorney General, the commission will investigate the matter but it will copy its report to the Taoiseach who will lay it before the Houses.
The section states: "A person who is elected as a member after the commencement of this section in relation to the House concerned shall. . . " Does that mean the section can only apply to future Members?
The Bill is not retrospective.
Does "a person who is elected as a member after the commencement of this section" mean only people who are new Members after the enactment of the Bill or will it apply to those of us who are already Members?
It will apply to everyone.
What happens if you cease to be a Member?
It means that after the next election we will all have to apply?
Absolutely.
Why does it specify a Member who is elected? One could be nominated aMember of a House.
That point is referred to later.
It is mentioned later but it appears to be very sloppy drafting. Why not specify "a person who becomes a Member" rather than "elected Member" and delete paragraph (c) of subsection (2)?
I will look at it again. I do not know if it makes a difference.
The drafting which seems very convoluted could be open to a different interpretation later.
This is because there are different election dates. Members could be appointed, elected, appointed to the Seanad and appointed as a Minister. There are all sorts of different commencement dates.
That does not explain the point. Why not say "a person who becomes a Member".
I will make it simpler if possible because it appears convoluted.
I move amendment No. 41:
In page 16, lines 1 to 5, to delete subsection (3) and substitute the following:
"(4) If a person contravenes subsection (1), the Commission shall investigate the matter and shall draw up a report in writing of the result of the investigation and-
(a) if the person is a person referred to in subsection (1), furnish a copy of it to the Committee who shall cause copies of the report to be laid before the House, and
(b) if the person is a person referred to in subsection (3), furnish a copy of it to the Taoiseach who shall cause copies of it to be laid before each House.”.
I move amendment No. 42:
In page 16, before section 20, to insert the following new section:
"20.-(1) The Board shall not recommend a person to the Minister under section 16 of the Courts and Court Officers Act, 1995, unless the person has furnished to the Board-
(a) a tax clearance certificate that was issued to the person not more than 18 months before the date of the recommendation, and
(b) a statutory declaration made by the person not more than one month before that date to the effect that, at the time of the making of the declaration, the person is, to the best of his or her knowledge and belief, in compliance with the obligations specified in subsection (1) of section 22 and that nothing in subsection (2) of that section prevents the issue to him or her of a tax clearance certificate.
(2) The Government shall not advise the President to appoint to a judicial office a person who was not the holder of a judicial office on the date of the advice and who was not recommended to the Minister in relation to that appointment by the Board under the said section 16 unless the person has furnished to the Secretary to the Government-
(a) a tax clearance certificate that was issued to the person not more than 18 months before the date of the advice, and
(b) a statutory declaration made by the person not more than one month before that date to the effect specified in subsection (1)(b).
(3) In this section-
'the Board' means the Judicial Appointments Advisory Board;
'judicial office' means the office of-
(a) judge of the Supreme Court,
(b) judge of the High Court,
(c) judge of the Circuit Court, or
(d) judge of the District Court;
'the Minister' means the Minister for Justice, Equality and Law Reform.".
I move amendment No. 43:
In page 16, subsection (1), line 6, to delete "a judicial office or".
I move amendment No. 44:
In page 16, lines 26 to 32, to delete subsection (2) and substitute the following:
"(2) If a person contravenes subsection (1), the Commission shall investigate the matter and shall draw up a report in writing of the results of its investigation and furnish a copy of it to the public body concerned.”.
I move amendment No. 45:
In page 16, between lines 34 and 35, to insert the following subsection:
"(4) Where a person, who is the subject of a report under subsection (3), has failed to demonstrate tax compliance within 30 days of the laying of the report, he shall stand suspended from office until such time as he supplies a tax clearance certificate to the Clerks of both Houses of the Oireachtas unless both Houses have in the meantime decided otherwise.”.
I raised this issue on Second Stage. If a judge is not tax compliant, he carries on regardless, there is no penalty. I am aware a judge cannot be removed for very valid reasons other than through the process of impeachment. In future we should be able to deem judges who are not tax compliant suspended until they supply a tax clearance certificate. It is a blow for freedom.
The proposal that if a person fails to demonstrate tax compliance within 30 days of the laying of a report by the commission he shall stand suspended until he supplies a tax clearance certificate appears to apply only to senior public servants, since section 20 applies to them.
I wonder why the Deputy is doing it that way. The section——
The person who is appointed to the section——
I have changed it. The section also applies to judges. We are dropping that by Government amendment. It has been dealt with in another way. We will leave the section that deals with public servants. It would be more in keeping with natural justice if the person concerned was given a chance to explain his or her position to an appropriate authority, and that any penalty would be commensurate with the offence. Failure to provide a certificate would be in relation to a major or a lesser breach of the tax codes. The moral pressure on a person to regulate his or her tax position would be enormous.
I want to clarify something. The Minister of State has inserted a new section 20 but the old section 20 is still in the Bill. Is that correct? Will it become section 21?
No. We deleted it. I took out the reference to judges.
Section 20 as it stands states that a person appointed to a judicial office, or a senior position, after the commencement of the section, shall not, more than nine months after the date he or she is so appointed, furnish to the commission——
I have changed that so that they must do so before appointment. That is the amendment.
That has the effect of amending the section.
Yes, it does. There were a series of amendments. I amended that section also. It was included in the first lot. There was a raft of amendments.
My amendment was to the Bill as it stood. We still have not covered the point and on Report Stage we will have to consider what happens to a judge subsequently. However, I will withdraw the amendment on the basis that we will consider it again on Report Stage. There will be a similar amendment at that time.
I move amendment No. 46:
In page 16, before section 21, to insert the following new section:
"21.-(1) Judges shall be required to make an annual declaration of interests in like manner and in like extent as required of Members of the Oireachtas.
(2) The Declaration shall be made to the Registrar of the Supreme Court who shall have the same duties in respect of judicial declarations as the Clerks of Dáil Éireann and Seanad Éireann have in respect of declarations of Members of their respective Houses.".
This amendment was discussed with amendment No. 2.
I want judges to be required to make annual declarations similar to those required of Members of the Oireachtas.
I said at the time the amendment was discussed that I would come back to this in the future. I want to be consistent. I am not going to insist that Members of the Oireachtas have to make annual returns so I want some consistency.
Members of the Oireachtas are required make annual returns.
I am sorry, I am talking about tax returns.
Will the Minister of State look at this for Report Stage?
I said that the Minister for Justice, Equality and Law Reform would look at the matter.
That is unsatisfactory. This is the Standards in Public Office Bill. If we include the Minister for Justice, Equality and Law Reform we do not know what will come before the committee.
I have attempted to go down the middle with this. The judicial council and the ethics surrounding this make it a weighty issue. I do not disagree with that. The Deputy and others have agreed with that. It was not appropriate for me to deal with that issue in the context of this Bill. There are substantive issues to which the Deputy rightly draws attention, and which have to be dealt with.
I do not want to be tiresome about this but the Bill starts off with the words, "An Act to provide for the establishment of a commission to be know as the Standards in Public Office Commission, to confer on it the functions of the Public Offices Commission and certain other functions, to provide for the furnishing of tax clearance certificates to that commission by persons upon election to either House of the Oireachtas, or appointment to judicial office or senior office, to amend the Statutory Declarations Act, 1938, the Ethics in Public Office Act, 1995, and the Electoral Act, 1997, and to provide for connected matters."
This is the appropriate Bill for these purposes. However, when we try to establish similar standards for judges as for Members, it is said to be a matter for the Minister for Justice, Equality and Law Reform.
I am not trying to fob off this on the Minister for Justice, Equality and Law Reform. The point I am trying to make is that the issue which Deputies and the Labour Party dealt with earlier was recognised then to need a lot more time for its consideration. There are important issues at stake.
The Minister of State has caused difficulty for himself. He has dealt with just one issue here, that of the tax clearance certificates——
Because it is an issue with which I could deal.
——while not dealing with the bigger issues.
No. I do not have the scope to deal with those bigger issues in the context of what I am doing here. It is for the more appropriate Department to deal with the matter. I am coming at this from a Department of Finance perspective. Tax clearance certificates are clearly my responsibility. However, the important issues which Deputies are trying to bring into this discussion are not for me, as Minister of State at the Department of Finance, to lead on. They are clearly appropriate to the Department of Justice, Equality and Law Reform.
We prescribe standards of behaviour and codes of practice for public servants——
There are particular issues involved.
I appreciate that but the fact that the Minister of State felt able to deal with tax clearance certificates and not the other matters——
I would like to be able to deal with these matters.
It would be more honest of the Minister of State to extract from this Bill all references to the Judiciary and refer it to the Minister for Justice, Equality and Law Reform so that we get a composite Bill from that Minister on judicial matters.
It is implicit in the Bill. I do not see why, if I can deal with an issue, I should not do so. That is why I am dealing with the tax clearance certificates. I thought that I had met a lot of the Deputies' requirements earlier and that we had reached some agreement. The Deputies do not want me to withdraw that.
A judge was appointed as the chairman of the commission. One of the justifications for that was that a judge would be necessary for certain judicial matters. Now we are withdrawing almost everything about judges. It would be more honest to take out everything to do with judges.
I move amendment No. 47:
In page 17, subsection (2)(a), lines 3 and 4, to delete “who is a member or the holder of a judicial office” and substitute “referred to in subsection (1) or (3) of section 19”.
I move amendment No. 48:
In page 17, subsection (2)(a), lines 9 to 15, to delete all words from and including “and-” in line 9, down to and including “non-compliance” in line 15 and substitute “and, if the person is a member, notify the Committee in writing of it.”.
I move amendment No. 49:
In page 17, subsection (2), lines 16 to 24, to delete paragraph (b) and substitute the following:
"(b) When such a person as aforesaid complies with subsection (1), the Commission shall-
(i) if the person is a person referred to in section 19(1), notify the Committee in writing of the compliance and the Committee shall cause copies of the notification to be laid before the House, and
(ii) if the person is a person referred to in section 19(3), notify the Taoiseach in writing of the compliance and the Taoiseach shall cause copies of the notification to be laid before the House.".
It strikes me as weak to say that if someone does not provide a tax clearance certificate his or her obligation does not go away, and that this is noted year after year as the position continues, without any sanction to prevent this happening. The only sanction seems to be that it gets noted in the annual report for as long as the person fails to provide the clearance certificate. I do not have a solution to the problem, I am merely mentioning it.
I move amendment No. 50:
In page 18, subsection (1), line 1, to delete "or 20" and substitute ", 20 or 21".
Section 22 establishes what tax clearance certificates will entail for the purposes of the Bill, specifically sections 19 and 20. Amendment No. 51 relates to subsection (4) where a person has applied for a tax clearance certificate. The collector general has not yet decided on the application, or has refused the application. The matter is under appeal under section 10(94) of the Taxes Consolidation Act, 1997. The provisions of section 22(4) are not appropriate to persons seeking tax clearance certificates under section 21 which applies particular provisions to persons endeavouring to comply, having failed to comply with the tax clearance requirements. Applications under section 21 are, therefore, being excluded from section 22(4) and the amendment.
I move amendment No. 51:
In page 18, subsection (4), line 19, after "subsection (1)”, to insert “(other than a person so applying for the purposes of section 21)”.
I move amendment No. 52:
In page 19, subsection (6), line 1, to delete "subsection (6)” and substitute “subsection (5)”.
This amendment deals with a typographical error.
I move amendment No. 53:
In page 19, before section 23, to insert the following new section:
"23.-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 is intended to cater for circumstances in which a person provides inaccurate or inadequate information and receives tax clearance from the Revenue Commissioners and it subsequently emerges, either publicly or to the Revenue Commissioners or, in the case of a Member, Members of the House, that clearance was granted on the basis of inadequate information. The amendment would allow the Revenue Commissioners to revoke the tax clearance certificate. As far as I can ascertain, the Bill makes no provision for these circumstances.
This proposal would give the Revenue Commissioners the power to rescind a tax clearance certificate where they formed the view that the original clearance was based on inaccurate or incomplete information and a duty to notify the commission accordingly. I would be uneasy about imposing on the Revenue Commissioners a duty to intervene in this manner. In certain circumstances the timing of such an intervention might interfere with crucial Oireachtas votes or business and could clearly be prompted maliciously.
There are already penalties available under the tax codes. Presumably, the person concerned would also have made a false statutory declaration in relation to his or her tax compliance under the Statutory Declarations Act, 1938. Moreover, the proposed amendment would not sit well with the existing rules for tax clearance. These represent a snapshot view at a particular point in time. There is no similar provision in relation to all the other tax clearance provisions in place.
The tax clearance provisions we seek to insert would be unique because they would relate to a four year period specifically related to elections. This is about saying to the public that in terms of his or her tax affairs the person who has just been elected is straight up. If it subsequently emerged that the information, on which that statement to the public was based, was wrong, it is fair that Revenue would retrospectively revoke clearance and undo the statement made to the public.
If for any reason a person's tax clearance certificate was revoked following his or her election, he or she would still be obligated to provide a tax clearance certificate.
The Bill does not go into detail.
The person concerned would already be in trouble under the other statutory declarations he or she had made.
Having been prosecuted for making a false declaration, it would be nonsensical for him or her to continue to be able to brandish his or her certificate and say he or she still had clearance.
The certificate would be meaningless.
Why not allow the Revenue to revoke it?
The point is that a tax clearance certificate will be a very important document in terms of compliance with the provisions of this legislation. I agree with Deputy McDowell that if the Revenue Commissioners, the only body authorised to state whether a tax clearance certificate is valid and up to date, subsequently find it to be invalid, there should be an obligation on them to inform the commission of this fact. Otherwise the matter could drift on for a long time.
To return to an earlier issue, there have been very few prosecutions for making false declarations to Revenue, an issue on which there is a long way to go.
I remind the Deputy that the legislation is relatively new.
Exactly. It is important, therefore, that the commission is informed.
We are missing a point here. A tax clearance certificate is issued and relevant for a specific period only. Obviously, based on the information and facts pertaining at the time of issue, the certificate will have been deemed to have been valid. When a person is elected he or she receives a genuine tax clearance certificate but he or she may not be tax compliant 12 or 18 months later.
I am not addressing that point. This relates to the point at which the tax clearance certificate was issued on the basis of inadequate or incorrect information. This means that the full facts were not known to Revenue when it issued the certificate.
I will examine the matter.
In fairness, it is an unusual kind of tax clearance certificate. It is almost a political statement or clean bill of health.
I am aware of that and will return to the matter on Report Stage.
This section should be amended to require the regulations to be approved by the Houses of the Oireachtas.
The Deputy should table an amendment on Report Stage.
I will do so.
I move amendment No. 54:
In page 20, subsection (4), line 35, to delete "1997" and substitute "1999".
This is a minor technical amendment to correct the reference to the electoral Acts.
I move amendment No. 56:
In page 21, column (2), between lines 4 and 5, to insert the following paragraph:
"(1) In subsection (1), the following definition shall be substituted for the definition of 'gift':
' "gift" means a gift of money or other property excluding a donation (within the meaning of the Electoral Act, 1997);'.".
Two amendments are proposed to section 2 of the principal Act, the first of which is consequential on the deletion of section 10 of the Bill with which we have already dealt. The amendment inserts into section 2 a definition of "gift" for the purposes of the ethics Act which will exclude a donation within the meaning of the Electoral Act, 1997. This is in recognition of the amendments to the Electoral (Amendment) Bill, 2000, being brought forward by the Minister for the Environment and Local Government which serve to differentiate more clearly between gifts and political donations. The second amendment is to correct a minor typographical error.
I move amendment No. 57:
In page 21, column (2), lines 21 and 22, to delete paragraph (1) and substitute the following:
"(1) In subsection (1), 'not later than the following 31 January, prepare and furnish to the Commission' shall be substituted for 'not later than 30 days after that date, prepare and furnish to the Clerk'.
(2) In subsection (2), 'not later than the following 31 January' shall be substituted for 'not later than 30 days after that date'.".
I move amendment No. 58:
In page 21, column (2), to delete lines 46 and 47 and substitute the following:
"In subsection (4)-
(a) in paragraph (a), ’paragraphs (a), (b) and (c) of’ shall be inserted before ’section 29(1)’, and
(b) in paragraph (b)(ii), ’in the case of the statement of the correction, if it’ shall be substituted for ’if either of those statements’.”.
I move amendment No. 59:
In page 22, column (2), between lines 20 and 21, to insert the following paragraph:
"(1) The following subsection shall be inserted after subsection (1):
'(1A) Notwithstanding subsection (1), a House may by resolution change the name of the committee appointed by it under this section to another name, and whenever the name of such a committee is so changed, references in this Act to the first-mentioned name shall be construed as references to that other name.'.".
I move amendment No. 60:
In page 27, column (2), paragraph (1), lines 38 to 52, to delete subparagraphs (a) and (b) and substitute the following:
"(a) in paragraph (a), ’(other than members who are not office holders)’ shall be deleted, and
(b) in paragraph (b), ’(other than a member who is not an office holder)’ shall be deleted and ’and may, at the request of a person give advice to the person, if section 4(1)(a) applies to the person, in relation to that section or as to the application in any particular case, of that section’ shall be inserted after ’any such provision’.”.
I move amendment No. 61:
In page 28, column (2), line 51, to delete "either".
I signalled that I would return to this matter on Report Stage.
I move amendment No. 62:
In page 28, column (2), after line 52, to insert the following paragraph:
"(3) The following subsection shall be inserted after subsection (2):
'(2A) (a) Notwithstanding subsection (4), where the action specified in a motion for a resolution under subsection(1) is or includes that specified in subsection (2)(c), it may also, subject to compliance with the conditions specified in paragraph (b), include the withholding from the office holder or other member concerned of so much of the annual sum by way of salary payable to him or her under the Oireachtas (Allowances to Members) Act, 1938, as may be specified in the resolution.
(b) The conditions referred to in paragraph (a) are:
(i) that the Committee concerned is of opinion that the act or contravention to which the motion relates was done or made intentionally and was of a grave nature,
(ii) that the withholding is reasonable in all the circumstances,
(iii) that the amount of the annual sum specified in the resolution does not exceed the amount thereof payable in respect of the period of suspension from the service of the House concerned specified in the resolution.'.".
This amendment proposes to insert a new subsection. It reads:
Subsection (1) is or includes that specified in subsection (2)(c), it may also, subject to compliance with the conditions specified in paragraph (b), include the withholding from the office holder or other member concerned of so much of the annual sum by way of salary payable to him or her under the Oireachtas (Allowances to Members) Act, 1938, as may be specified in the resolution.
The proposal that salaries may be forfeited by Members is questionable. It does not apply to any officials or judges because it is probably unconstitutional. Why are we crucifying Members of the Oireachtas more than others?
It is necessary to be clear that, in terms of disciplining Members, we have the power to dock salary for periods in cases where, for example, they are suspended. There has been some debate as to whether that power exists. It is important that it should not be exercised all the time and that it should be clarified.
I agree with that sentiment, but I am questioning why the power does not apply to everybody.
For anybody else, judges or civil servants, there are disciplinary procedures in place that deal with the issue according to their rules and regulations, which may well lead to a suspension or loss of salary.
Can the Minister cite a recent case in which a civil servant has had his salary docked?
I cannot.
They are normally suspended with a salary. Leaving that aside, the Bill is making provisions for Members of the Oireachtas with which I agree, but why should they be treated more harshly than others who may have more influence than Members?
The official beside me, who is on the disciplinary board, has assured me that it does happen.
I would like three examples.
I do not want to put him on the spot as his word is good enough.
As Chairman of the Committee of Public Accounts, I repeatedly asked if anybody was penalised or salaries lost because of wrongdoing in the Civil Service. I do not remember one case in which it happened. We have had recent cases that scandalised the public and Deputies were suspended, but they did not lose salaries. However, if they are to lose their salaries, the same should apply equally to the other people covered by this legislation.
I think that, for reasons already stated, it does happen under the disciplinary codes that govern the other groups, such as public servants. We know it does not happen where Oireachtas Members are concerned.
Having questioned that as Chairman of the Committee of Public Accounts, it always infuriated me that nobody ever paid the penalty.
Why did Deputy Mitchell not get a positive answer?
That is why I am asking for examples.
I move amendment No. 63:
In page 30, column (2), line 31, to delete "subsection (1)(b)(i)” and substitute “subsection (2)(b)(i)”.
We may need to make a small correction to Schedule 1 regarding section 24 of the Principal Act on Report Stage. I wish to table an amendment to the Schedule concerning to references to the Director of Public Prosecutions.
I have a procedural point to make. There seems to be a lack of co-ordination between the finance business in the House and in the committee.
Can we finish the Bill?
Yes. I was afraid I would not have had the opportunity to raise the point.
I thank the Minister and his officials for attending.
