Enda Kenny
Question:1 Deputy Enda Kenny asked the Taoiseach his plans to amend the code of conduct for officeholders; and if he will make a statement on the matter. [29475/08]
View answerTuesday, 18 November 2008
Questions (1, 2)
Eamon Gilmore
Question:2 Deputy Eamon Gilmore asked the Taoiseach his plans to make changes to the code of conduct for officeholders; and if he will make a statement on the matter. [38354/08]
View answerOral answers (21 contributions)
I propose to take Questions Nos. 1 and 2 together.
The code of conduct for office holders was drawn up by the Government pursuant to section 10(2) of the Standards in Public Office Act 2001, following consultation with the Standards in Public Office Commission, and was published in July 2003. Deputies will be aware that the Ethics in Public Office (Amendment) Bill 2007 provides for changes to the ethics framework. A review of the code will be carried out, in consultation with the Standards in Public Office Commission, after that Bill has been enacted.
The value at which a gift needs to be declared to the Standards in Public Office Commission was raised from €650 to €2,000. If a Minister, Minister of State or another officeholder gets a gift worth more than €2,000 from an organisation or individual, it must be declared to the commission.
The Taoiseach stated that the increase was meant to strike a balance between gifts of minimal value and gifts that would be meaningful enough in terms of an ethics requirement. How can a balance be struck between €650 and €2,000? It is a substantial increase. How was the amount of €2,000 decided? I do not know what kind of gift would be given to a Minister or Minister of State for opening something. The house of the former Minister, Deputy Woods, is probably full of bits of timber and glass. I hope none is worth €2,000. Will the Taoiseach comment?
The purpose of the Ethics in Public Office (Amendment) Bill 2007 is to require officeholders and Oireachtas Members not to accept gifts or loans worth in aggregate more than €2,000 in a calendar year from a friend for personal reasons without obtaining the opinion of the Standards in Public Office Commission that acceptance would not be likely to materially influence the recipient in the performance of his or her functions or duties.
Regarding the question of what threshold for disclosures to the Standards in Public Office Commission should apply, a balance must be struck. On the one hand, the figure needs to be small enough to be meaningful as an ethics requirement and, on the other, it needs to be large enough so that officeholders and Oireachtas Members do not need to spend time counting every ordinary gift from friends. It also needs to be large enough to avoid making the Standards in Public Office Commission deal with applications concerning gifts worth less than the set amount.
The threshold has not increased since the Ethics in Public Office Act 1995, apart from a change to a convenient euro amount during the euro changeover in 2002. The threshold set in the Act was the first attempt to set thresholds in this area. It is by no means unreasonable for the first attempt to be revised 13 years later in light of experience, not to mention the need to counterbalance the effects of inflation eroding the true value of the original figure in the intervening years. In addition, the world in which we live is different from that of 1995. While €2,000 is not an insignificant amount, it is the opinion that the Bill, when enacted in 2008 or 2009, will set the amount for the coming years. Increasing the threshold in these circumstances is reasonable.
It seems as if we held a discussion in this and other forums on the definition of a friend, what loans or gifts friends gave and how they were to be repaid, but this is not the point of my question. From the information the Taoiseach has with him, does he know how many Ministers or Ministers of State have declared gifts or loans valued above the standard rate of €2,000 in recent years?
When the Taoiseach was the Minister for Finance, he refused to allow the Standards in Public Office Commission to initiate an inquiry where it believed sufficient public interest required one. He made the point that this would not be in the interests of a person who might be investigated. However, the most important thing would be for that person to be vindicated. Will the Taoiseach indicate whether the Standards in Public Office Commission is capable of good judgment and that it would only initiate an agreement if such action was warranted? Does he intend to change that aspect of the legislation?
The Standards in Public Office Commission has stated that there is no provision to allow third parties to clear spending on referenda or any other campaigns in advance with it and that no third party did so before the most recent campaign. The Taoiseach and I are both of the view that this is an important matter. Is it intended to change the aspect of the legislation relating to this matter? Persons or organisations which involve themselves in election or referenda campaigns should, under law, be obliged to declare the sources from which income above a certain level is received.
I appreciate Deputy Kenny's interest in that matter. As he is probably well aware, however, these questions relate to officeholders.
The questions relate to the Standards in Public Office Commission, declarations and ethics. The public has a right to know, in the context of transparency and accountability, from where those who campaign either for or against the question posed in a referendum or take part in the electoral process obtain their funding.
In such circumstances, an appropriate question should have been tabled. Legislative changes relating to the Standards in Public Office Commission are, in any event, a matter for the Minister for Finance.
I asked a supplementary question in respect of the Ethics in Public Office (Amendment) Bill 2007. In that context, does the Government intend to amend that legislation in order that organisations or individuals would be required to declare their sources of income? The situation whereby some groups can obtain funding from unidentified sources for various campaigns should not be allowed to continue.
As the Ceann Comhairle stated, the Deputy's latter question is a matter for the Minister for Finance. The matter will obviously be considered but if the Deputy were to submit a parliamentary question directly to the Minister, he might elicit a more comprehensive reply.
On the question relating to thresholds, these are matters of judgment. When I was Minister for Finance, I consulted the select committees on Members interests of both Houses with regard to the proposals contained in the Bill before its publication last year. The Seanad committee agreed with the proposals, while the Dáil committee welcomed them and indicated that they would further strengthen the accountability of Members of the Oireachtas.
With regard to accepting a proposal from the commission that we might allow inquiries or investigations to be made in the absence of a complaint, the law already enables the Standards in Public Office Commission to carry out investigations on its own initiative. Such investigations are full-scale in nature and are carried out by the commission itself. The commission is allowed to appoint an inquiry officer in order to ascertain whether there is evidence to sustain a complaint where it has received one. The launch of an inquiry by an inquiry officer could have serious and adverse consequences for any person who was the subject of that inquiry. It is not unreasonable that someone should be obliged to lodge a complaint before that happens. There are numerous categories of people, including the general public, who might make complaints of this nature against officeholders and public servants who come within the commission's purview.
The Deputy inquired about exceptional circumstances. If the circumstances were so exceptional, then one would expect someone to make a complaint. In any event, there is no doubt that the Standards in Public Office Commission would come under increasing pressure to appoint inquiry officers in circumstances that are less and less exceptional. The result would be the holding of inquiries where no one had actually complained but where there could be serious consequences for the persons who were the subject of such inquiries. That would not be fair.
As already stated, the commission has the right to initiate an investigation in the absence of a complaint. If it wishes to appoint an inquiry officer, this should be done on the basis of a complaint received. I do not believe the system, which is fair to people on all sides, should be changed. People act on the basis of complaint and not on their own initiative. Also, the adverse consequences for the person concerned stand during the course of the process even where a complaint has not been made.
I listened to the Taoiseach's initial reply which is almost word for word the reply he gave to the same question in May. In essence, he is saying that the Government will carry out a review of the code of conduct for officeholders following enactment of the Ethics in Public Office (Amendment) Bill 2007. The problem with that reply is that the ethics legislation appears to be going nowhere. The Ethics in Public Office (Amendment) Bill 2007 is the product of the grandstanding in October 2006 of the then Tánaiste and Minister for Justice, Equality and Law Reform, former Deputy Michael McDowell who obtained a commitment that this legislation would be introduced to ensure an officeholder, who is unsure as to whether he or she should accept a gift, can seek the opinion of the Standards in Public Office Commission in that regard. The Bill which was passed by the Seanad in July 2007 is going nowhere as far as this House is concerned.
The Taoiseach, in his capacity as Minister for Finance with overall responsibility for this Bill, stated in January 2008 that it was his intention to have the Bill passed by this House that session. However, that did not happen. It appears to me the Government has no serious intention of having this legislation enacted. In those circumstances, will the Taoiseach undertake a review of the code of conduct for officeholders irrespective of the passage of the Ethics in Public Office (Amendment) Bill 2007? If, as implied in the Taoiseach's reply, the code of conduct requires to be reviewed will he agree to carry out this review irrespective of the Government's intentions in respect of the amendment of the ethics legislation?
It is open to the Whips to agree to the taking of the legislation concerned. There is a great deal of legislation pending this session. I take Deputy Gilmore's point that it was contemplated the Ethics in Public Office (Amendment) Bill 2007 would be dealt with during the last session but that this did not happen. It is unlikely to be completed this session given the necessity to deal with various other pieces of legislation, including the Finance Bill 2008, the nursing homes Bill and Social Welfare Bill. There is currently a great deal of legislation going through the House and it is unlikely the Ethics in Public Office (Amendment) Bill 2007 will be taken this session. Perhaps it can be done but I do not know that. It is unlikely, in my opinion, it will be completed this session. It will be possible to deal with it early in the next session.
The Government is interested in enacting the legislation. Also, Deputies will have an opportunity to voice their views on the Bill when it is being debated in the House. While I cannot predict what issues will arise, in my view it would not make sense to review the code until after the Bill has been enacted. I believe this is the best way to proceed. The code of conduct does not stand in isolation. It cannot impose requirements not already set out in legislation and as such it is legislatively based. Also, it does not add any new powers or provisions in respect of enforcement and attempts, in the main, to provide guidance at a level of detail that would be difficult to express in legislation.
The code of conduct assists Members or officeholders to ensure they are in compliance with the legislation. Also, it is used by the Standards in Public Office Commission as guidance in terms of whether a complaint made under section 4 of the Act should be investigated. Section 4 is the section of the ethics legislation under which complaints of a breach of the ethics Acts can be made. These provisions are not in any way compromised or undermined by the absence of a review of the code of conduct. The review can only be undertaken following enactment of the legislative base. As Deputy Gilmore stated, the Bill has been passed by the Seanad and it will be taken in this House as soon as practicable. We can obtain views in the context of that and conduct a review which, however, may not require subsequent changes to the code of conduct. I make the point that a review of the code of conduct cannot add to the legislative base that already exists.
The Taoiseach's earlier reply regarding the request from the Standards in Public Office Commission that it be allowed to carry out inquiries in the absence of a complaint being made to it is akin to saying the Garda should not carry out investigations in respect of normal policing unless somebody has made a specific complaint. If the commission has responsibility for policing the battery of ethics and standards legislation that now exists and has requested the power to carry out investigations on its own volition, surely it is reasonable to grant it such a power.
I respectfully suggest that in areas of criminal law, gardaí or law enforcement officers do not act except on foot of a complaint from an individual citizen. In respect of a civil assault, for example, they would not proceed in the absence of other evidence unless they received a complaint. They would not have the evidential basis on which to proceed. It is not true to claim, therefore, that people can act under the criminal code in the absence of a complaint. In many cases, a complaint is required before action can take place.
Apart from that, it is a civil law matter relating to ethics requirements either under the ethics legislation or the Electoral Acts. In regard to issues of ethics, we have established the commission to act on the basis of complaints. That is eminently reasonable. I regard the idea that an adverse situation could obtain in respect of a Member of the House in the absence of a complaint as offending the principle of fairness. If it is the case that the general category of people who can complain have not taken the opportunity to do so, an inappropriate imbalance would be created if an inquiry officer was appointed in the absence of any complaint from anybody. Even in the absence of an inquiry officer, one can still conduct an investigation on one's own initiative, which itself is a substantive procedure. The appointment of inquiry officers who can visit Members' offices to state they have been appointed by a commission, however eminent, to inquire into something but who on being asked whether a complaint was made can reply "No" goes beyond what is fair and reasonable, given the adverse circumstances that would as a result obtain for that Member or officeholder even in the absence of evidence and the inquiry going into the sand. I do not think that is right.
In the absence of a review, is the Taoiseach in a position to tell us how many declarations have been made since the reportable value of gifts received by an officeholder was increased from €650 to €2,000? Where are these declarations recorded and retained?
I note that the code requires an officeholder to make a declaration where he or she has a specific material interest in respect of any matter pertaining to the performance of his or duties. Can the Taoiseach indicate whether declarations have been made in this regard over the period since 2003 and, again, where this information is retained?
The Taoiseach cannot be expected to answer statistical questions on this issue.
I cannot give the Deputy any answers as to whether there have been any gifts declarable over €2,000. That information is not available to me. I do not think so. I am not aware of any.
Would the Taoiseach inquire?
I can inquire. If it is in line with the legislation and the code of conduct, I will do so. There are some aspects of the legislation where one submits the inquiry to the commission and the commission confirms one's position. It is not declarable or whatever if it is covered by the legislation. I would need to check for the Deputy. I do not know off-hand.
I believe there is also an arrangement by which one can take a gift, which is not declarable, from a friend at a certain threshold if it is passed by the commission, if the Deputy understands what I am saying, and one abides by the finding of the commission. I am not aware that there has been any such example. I will check it out to ascertain whether it is possible to give the Deputy that information.
I know of a situation where Ministers would declare their interest, for example, in any issue that would come up for discussion and would have informed the Standards in Public Office Commission of it. That is one of the requirements of the code. That has happened with Ministers on a few occasions.
I wish to explain to the Deputy that records in this instance are a matter for the authority, which is the regulatory body dealing with the records. The Taoiseach could not be expected to have them in his possession in replying to a general question about officeholders.
I have no issue with that. I seek a clarification as to where the information is retained. To whom are the declarations to be made? Is specific information retained on all aspects under the code of conduct?
The commission would retain any information in that respect. If one is offered a gift of a certain value, one applies to the commission to clarify whether it is right to accept it and one abides by its decision. That is the way it works under the provisions of the Ethics in Public Office (Amendment) Bill 2007 that we are discussing.