Dáil Éireann díospóireacht -
Wednesday, 31 May 1995

Vol. 453 No. 7

Ethics in Public Office Bill, 1994: Report Stage.

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

I move amendment No. 1:

In page 5, line 36, after "knowledge" to insert "'and includes, in relation to a fact, belief in its existence the grounds for which are such that a reasonable person who is aware of them could not doubt or disbelieve that the fact exists".

The original formulation of the definition of "actual knowledge" was based on legal advice. On Committee Stage there was a great deal of discussion about whether this definition was unduly restrictive. I undertook to re-examine it. After taking further legal advice I am now in a position to broaden the definition. I commend it to the House.

Mr. Connolly

This amendment relates to section 2 and inserts after the word "knowledge" the words "and includes, in relation to a fact, belief in its existence...". While I have no objection to the inclusion of a reference to a spouse I could not agree to the inclusion of a reference to a child. I hold strong views on this issue and will deal with the matter more comprehensively later.

A Member of the House, including an office holder, may not always be aware what interests their child, over the age of 18, may have although there is a perception that they are so aware. Their child may not inform them that they have purchased land which may become the subject of a designation order under the renewal scheme or be rezoned for the simple reason that they would be opposed to this purchase. If the land is rezoned the Member concerned would not be able to clear their name as the perception is that they have to be aware of the interests their child may have.

I have been a Member of the Oireachtas for a long time and I regret to say that we do not have the same standing now as we had when I was first elected. As Members of the House would never be able to clear their names because of the public's perception that there is no smoke without fire I am opposed to the inclusion of any reference to a child as Members would be placed in an awkward position. However, I have no objection to the inclusion of a reference to a spouse.

Ms E. Fitzgerald

I am satisfied that this is a reasonable definition. If a Member of the House is not aware of an interest a spouse or child may have they will not be obliged to make a declaration. However, if they have seen title deeds or share certificates they will not be able to evade their responsibility. It is therefore a common sense definition. Having taken fresh legal advice I am pleased to be in a position to broaden the definition in this way. It will greatly strengthen and improve the Bill.

Amendment put and declared carried.

An Leas-Cheann Comhairle

We now come to amendment No. 2. I note that amendments Nos. 2, 5, 8, and 29 form a composite proposal and that amendments Nos. 27 and 28 are related. I suggest therefore that we discuss amendments Nos. 2, 5, 8, 27, 28 and 29 together by agreement.

Ms E. Fitzgerald

I move amendment No. 2:

In page 7, to delete lines 18 to 25.

On Committee Stage the words "election expenses" were deleted from section 15 and the word "donation" inserted in substitution. These are consequential amendments. We do not need a definition of "election expenses" or "registered political party" because we are using the word "donation". Section 15 provides that where someone receives a political donation this will be dealt with under the Electoral Bill and will not have to be surrendered, unlike gifts made to Ministers.

Mr. Connolly

Is any value put on donations?

Ms E. Fitzgerald

In the case of gifts the figure is £500. The question of donations is dealt with in the Electoral Bill.

Mr. Connolly

I doubt if anyone would receive a gift worth £500 or more. I never received such a gift.

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 3:

In page 7, to delete lines 34 and 35.

As the term "holding company" is not used in the Bill we do not need a definition. I am therefore proposing to delete the definition in the Bill.

Mr. Connolly

What are the reasons for deleting that?

Ms E. Fitzgerald

It is a drafting amendment.

Mr. Connolly

There must be a reason.

Ms E. Fitzgerald

Originally in drafting the Bill there was a very comprehensive set of definitions and in subsequent drafting, matters were defined which are not used later in the Bill. We are deleting them now.

Mr. Connolly

Does a holding company also refer to a group of companies?

Ms E. Fitzgerald

This is simply a technical amendment. It relates to a definition which is not used subsequently in the Bill and therefore it is not necessary.

Amendment agreed to.

Bill recommitted in respect of amendment No. 4.

An Leas-Cheann Comhairle

Amendments Nos. 4, 30, 59, 63, 64 and 66 form a composite proposal and amendment No. 31 is related. It is suggested therefore that amendments Nos. 4, 30, 31, 59, 63, 64 and 66 be taken together.

Ms E. Fitzgerald

I move amendment No. 4:

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

"(b) a member who holds the office of Attorney General,".

The definition of "designated position" in section 2 and the process whereby the Minister for Finance could prescribe under section 3 those persons in the public sector who would be required to make statements of interests was originally considered broad enough to cover the generality of public service positions, including the position of Attorney General, Comptroller and Auditor General, the Ombudsman, the Data Protection Commissioner and the Director of Consumer Affairs. We have since been advised legally that the definition is not strong enough to cover the latter group and that we need to make separate provision for these people. Hence amendment No. 30 which covers the Attorney General and No. 31 which covers the other positions.

It has been decided that where an Oireachtas Member is at the same time the holder of the position of Attorney General, he or she should be regarded as an office holder for the purposes of the Act and should be obliged to meet all the requirements imposed by the Act on Ministers and Ministers of State. This is the purpose of amendment No. 4. Where an Attorney General is not a Member of the House he or she will have applied to him or her arrangements similar to those applying to other public servants. For convenience these arrangements are set out in a new section to be inserted by amendment No. 30. As regards the Comptroller and Auditor General, the Ombudsman, the Data Protection Commissioner and the Director of Consumer Affairs, the section 17 designated position is being extended in amendment No. 31 to ensure that the holders of these posts are covered in the same way as other public servants.

On legal advice section 3 as it stands, which is designed to facilitate punitive action against a person found to be in contravention of the Act, will not be applied to these people. Instead any contravention of the Act, particularly a serious contravention, could leave them open to a charge of stated misbehaviour under the legislation establishing these posts.

Mr. Connolly

I presume the names of the persons mentioned will also appear on the register. In amendment No. 31 the Minister excludes judges. Why is that the case? Are they special people? My relationship with judges is reasonably good, but should a law which applies to the Minister and me not also apply to judges? Why must they not declare their interests? A spouse or child of a judge could have a personal interest in a civil case, perhaps concerning land or a moratorium, which is being heard by that judge. I do not understand why these people are excluded.

The litigation process is very far-reaching. To bring a major case to the High Court takes up to three years — I am open to correction on that — from the time proceedings are lodged in the court until the case is heard. I find it extraordinary that while so many people are included, such as the Ombudsman, staff in Departments and Members of the House — the Minister is even trying to include the children of these people — there is no obligation on judges to declare their interests. Is there one law for them and another for us? I cannot understand the logic behind that.

Members of local authorities and corporations, whether elected or co-opted to that body, must sign a register of declaration of their interests, and anybody who wishes may see that register. It seems there is one law for us and another law, or no law, for judges. They need not disclose, even in a case that is dealt with by a colleague, that they may have an interest in the case. This matter should be reconsidered. I would like detailed reasons for excluding judges.

Ms E. Fitzgerald

If a judge were to act where there is a conflict of interest, the judgment would be null and void. That is a well established legal principle. The inclusion of judges would raise extremely complex constitutional issues involving the separation of the Executive and the Judiciary and any action in this area, if it were considered appropriate, would be a matter for the Minister for Justice.

Mr. Connolly

How will it be ascertained if judges have such interests? It might never be brought to the attention of the Minister for Justice of the day that judges have interests. Their interests may come to light in ten years' time when they may have retired. Would those with such interests have to bear the expense of going to court to have a decision appealed? Judges may not know of their children's interests but they could come to light shortly after a judgment is made. I do not understand how it is complex for judges to make a similar declaration of interests to the one that I, a member of the local authority or the official in a Department, will have to make. Judges should declare their interests in respect of the houses and land they own, if they are company directors or an interest their spouse may have.

It was indicated in views expressed last weekend that not all the Minister's Government partners agree with all the provisions in the Bill. Businessmen who become politicians must declare all their interests. It would not be in the country's interests if business people did not put themselves forward for election. As they will be required to declare all their interests, many of them who are doing extremely well will be reluctant to become politicians, especially when judges are not required to declare their interests.

I do not know the complex legal matters involved in requiring judges to declare their interests. I am not casting any reflection on the Judiciary. Its members carry out their duties in an excellent manner, but I do not agree with their not being required to declare their interests. Is there one law for them and another for us? Are they above the law as they are not required to declare their interests? If that is the case, it is not realistic. Members of the public have every right to ask why they, their spouses, their children and the Minister are required to declare their interests, but some members of the legal profession are not required to declare theirs. Is that because they are privileged? I do not understand the legal complexity involved in requiring judges to register their interests. Such a register of their interests could be kept in the Attorney General's office or in the Department of Justice. The public will not understand why that is the case. I do not mean to be derogatory, but it is a lame excuse to say that judges cannot be included under the provision for complex reasons which I or, I am sure, members of the public do not understand.

Ms F. Fitzgerald

I am sympathetic to Deputy Connolly's point regarding the inclusion of judges, but I must abide by the legal advice I have been given that bringing judges under a regime of this type requires separate complex legislation because of the separation of powers in our Constitution. The public can rest assured that the fact that judges are not included under this legislation does not pose dangers for them. We can be satisfied about the integrity of our judges and we know there is a long established rule of law which states that if a judge acts in his or her case a judgment will be invalid. All judges are scrupulous in standing aside from such cases.

Mr. Connolly

From my experience past and present Members of the House across the political divide have great integrity and judgment. I believe they have performed their duties in a highly efficient and satisfactory manner. Some of the legal people advise members of the legal profession and hope to become judges in the future. Their advice may be based on the knowledge that if they became judges they could be required to declare their interests and that may be why they advise that judges should be excluded from that provision. The proverb that legal people decide to make wrong right and right wrong is often quoted in court. How many times have we seen that? Legal people will frequently say that they are giving the best advice they can. I am not casting any reflection on the integrity of the Judiciary. Why are county councillors, members of corporations and town commissioners required to declare their interests when judges are not? All that is involved for those who are required to declare their interests is the completion of a simple form stating their interests as requested on the declaration. It would be a simple matter to include judges under this provision and request them to make a simple declaration similar to that which local authority officials will be required to make.

The public perception on this matter will be rather clouded. While members must disclose where they live, the property they own and anything else they or their spouses own, judges are in the privileged position of not having to declare any of their interests. I fail to understand the complexity to which the legal people refer. Perhaps some of them hope some day to be among the privileged ranks of the Judiciary and have a vested interest in ensuring they are not included under the Bill. I do not have a difficulty with the amendment, but judges should not be excluded from the provisions of the Bill.

Amendment put and declared carried.

Amendment reported.

Ms E. Fitzgerald

I move amendment No. 5:

In page 8, to delete lines 20 to 23.

This amendment simply removes the definition of "registered political party" which is not necessary.

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 6:

In page 11, line 2, to delete "ensure" and substitute "ensure,".

This is merely a drafting amendment to insert a comma.

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 7:

In page 11, line 13, to delete "Act" and substitute "Act,".

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 8:

In page 11, to delete lines 15 to 23 and substitute the following:

"(b) If, on any amendment of the law relating to elections, it appears to the Minister to be expedient—

(i) to amend section 2 (1) for the purpose of assimilating ‘commercial price' to any definition of ‘commercial price' in that law, or

(ii) to amend section 15 (7) for the purpose of assimilating the definition of ‘donation' to any definition of ‘donation' in that law,

the Minister may for those purposes by regulations amend the definition mentioned first in subparagraph (i) or, as may be appropriate, the definition mentioned first in subparagraph (ii).".

Amendment agreed to.

Acting Chairman (Mr. Browne,

Carlow-Kilkenny): Amendments Nos. 9 to 13, inclusive, form a composite proposal and, therefore, may be discussed together.

Ms E. Fitzgerald

I move amendment No. 9:

In page 13, line 44, after "is" to insert "or, at the relevant time, was".

Deputies will recall that on Committee Stage a weakness was identified in the Bill whereby a contravention committed by an office holder while a Member could not be addressed. We tabled a series of amendments to sections 21, 22 and 23 on Committee Stage and these are a series of consequential amendments to tidy up the provisions.

Mr. Connolly

May I take it the investigation will not apply to a person who is no longer a Member of the House?

Ms E. Fitzgerald

That is correct.

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 10:

In page 14, lines 10 and 11, to delete "of either House (other than a member who is an office holder)" and substitute "(other than a member who is or, at the relevant time, was an office holder)".

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 11:

In page 14, line 18, after "is" to insert "or, at the relevant time, was".

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 12:

In page 14, to delete lines 45 and 46 and substitute the following:

"investigation under this section in relation to—

(a) a person who has ceased to be a member, or

(b) a person who is or, at the relevant time, was an office holder.".

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 13:

In page 14, after line 46, to insert the following:

"(5) Where—

(a) in relation to a person who is a member but is not an office holder, a complaint had been, or been deemed to be, referred or made to a Committee, or a matter that a Committee had considered it appropriate to investigate had been, or been deemed to be, otherwise before it,

(b) following a dissolution of Dáil Éireann, the Committee has ceased to exist, and

(c) the Committee had neither—

(i) complied with section 10 in relation to the complaint or matter, nor

(ii) discontinued the investigation of the complaint pursuant to section 29,

the complaint or matter shall be deemed, for the purposes of this section, to have been referred or made under section 8 to, or, as the case may be, to be before, the Committee of the House of which the person is a member, and this section shall apply and have effect accordingly in relation to the complaint or matter.".

Amendment agreed to.

Acting Chairman

Amendments Nos. 14, 16, 40 and 42 are related, No. 15 is an alternative to No. 14, No. 17 is an alternative to No. 16, No. 41 is an alternative to No. 40, No. 43 is an alternative to No. 42 and No. 54 is related. Therefore, amendments Nos. 14 to 17, inclusive, and Nos. 40 to 43, inclusive, and No. 54 may be taken together by agreement.

Ms E. Fitzgerald

I move amendment No. 14:

In page 15, line 49, to delete "£1,000" and substitute "£1,500".

I am raising the maximum figure which may be awarded under sections 11 or 25 against a complainant to £1,500 on the advice of the Attorney General, who advised it could not be raised higher. I am advised that if a committee or the commission were to award a higher figure this would probably be seen by the courts as going beyond the exercise of limited functions and powers of a judicial nature allowed for under Article 37 of the Constitution. In other words, the provision would probably be unconstitutional. In addition, as indicated on Committee Stage, I am amending section 29 to allow for the award of costs by a committee or the commission where an investigation is discontinued on the grounds that the relevant complaint was frivolous or vexatious.

Mr. Connolly

This is the most contentious section and Deputy McCreevy and I have tabled amendments in this regard. For example, prior to an election, people could form a cartel and make a complaint, without any grounds, against a Member of this House. The public would claim that there is seldom smoke without fire and the Member's reputation could be seriously damaged in the run-up to an election. After the election the person concerned might be no longer a Member of the House and, like files on a bad day in October, the complaint would die a sudden death.

Mr. Nealon

He or she would get a great deal of sympathy.

Mr. Connolly

Sympathy does not last. To deter people from lodging groundless complaints against Members, Deputy McCreevy and I tabled amendments to have the figures increased. This provision has serious consequences for Members of the House.

Debate adjourned.