Enda Kenny
Ceist:1 Mr. Kenny asked the Taoiseach if he has plans to amend the code of conduct for office holders; and if he will make a statement on the matter. [21443/04]
Amharc ar fhreagraWednesday, 17 November 2004
Ceisteanna (1, 2, 3)
Trevor Sargent
Ceist:2 Mr. Sargent asked the Taoiseach if he has plans to amend the code of conduct for office holders; and if he will make a statement on the matter. [26390/04]
Amharc ar fhreagra
Pat Rabbitte
Ceist:3 Mr. Rabbitte asked the Taoiseach if he has plans for amendments to the code of conduct for office holders; and if he will make a statement on the matter. [27854/04]
Amharc ar fhreagraFreagraí ó Béal (22 píosaí cainte)
I propose to take Questions Nos. 1 to 3, inclusive, together.
The code of conduct for office holders has applied since 3 July, 2003. Given the code's relatively short period of application, I have no plans to amend it.
Will the Taoiseach agree that the code of conduct should be updated and should make specific reference to the fact that politically appointed advisers should not sit on selection boards? There was quite a deal of controversy about a number of incidents in the past. Will the code of conduct be updated to take account of this?
The House cannot have a debate on the contents of the code of conduct.
I did not debate it.
The Deputy is suggesting what might be in it.
I asked the Taoiseach if he agreed it should be updated.
Just updated.
The Ceann Comhairle has had a very good run during the 17 minutes of over time but I did not say what was in the code of conduct; I asked the Taoiseach whether it would be updated.
The word "amend" is in order.
In reply to Deputy Kenny, the code is only 18 months in operation. I take Deputy Kenny's point that special advisers should not sit on interview boards for posts. I will investigate the matter. I do not know if they have done so. The Deputy quoted an example where this happened. They would not sit on an interview board for Civil Service positions. I will look at the matter.
The code of conduct was published on 4 July 2003. It does not allow the commission to impose any sanctions and I wonder if there are plans to change that. It states that the Oireachtas may impose a sanction. Given that Ministers are members of the Government, it is hardly likely that such a motion would be carried in the Dáil. If it is left to the Oireachtas to impose sanctions, is the Government serious about this code, given that the office holders are members of the majority in the House? Would it not be more realistic to allow the commission to make a judgment independently and to impose sanctions accordingly?
The code does not stand in isolation, being part of the wider ethics framework established by the Ethics in Public Office Act. Section 10(7) of the Standards in Public Office Act 2001 binds office holders to have regard to and to be guided by the code. The point raised by Deputy Sargent was foreseen and was nailed in section 10(7). Anything in the code may be taken into account and may be used in examination of a Member. If a Member is under investigation by the House or by a tribunal or court, the code may be taken into account. The wording of section 10(7) binds office holders to have regard to and to be guided by the code. In the case where the code cannot impose any new requirements which are not legislatively based, it can however be used by the commission as guidance as to whether a complaint made under section 4 of the Act should be investigated. An issue in the code, which is not tied in the legislation can be taken and used in full investigations. I have brought this to the attention of colleagues because people may not realise they are bound by an Act when strictly interpreted. According to section 10(7) one is responsible if it is in the code of conduct. A Member or his legal representative cannot simply read the Act and the code.
The Standards in Public Office Commission, which oversees implementation of the Act and guidelines has specific statutory powers to investigate and make findings in respect of failures of compliance with the Act and also the code. The penalties available to the commission are those specified in the 1995 Act which under section 24 involves making a report to a committee of the House. The code is clearly admissible in any proceedings before a court or other tribunal or a committee of the House or the Standards in Public Office Commission. It is important that Members understand this because initially people believed that the code did not have that power.
Does the code expressly forbid office holders being engaged in any other business while they are office holders? Is the Taoiseach satisfied that the terms of the code are being complied with? Is that quite distinct from office holders being in receipt of income from other sources while office holders?
The rules for the involvement of office holders in business are set down under the legislation and in the Cabinet handbook rather than in the code. There is a clear separation. They are entitled to receive income from companies, which they may own, providing they have made a clear and full declaration. One of my colleagues had a difficulty when he omitted to declare and the tribunal found against him on that basis. He should have declared the full content of shares and involvement. On that basis one can receive an income but it is clear that one cannot be involved in business under the legislation. Equally important is that the declaration must show clearly one's involvement and the means by which one is deriving an income. Also, one must declare fully any such income on an annual basis.
On the misdemeanours found to have occurred in regard to the Minister, Deputy Noel Dempsey, and the Minister of State, Deputy Fahey, which resulted in a number of calls for more clarification in the code——
That does not arise out of these questions, Deputy.
We are talking about changes to the code. Arising from those incidents——
You are talking about specific incidents.
I do not mean to talk about specific incidents. I am talking about a need for revision in the code to set out exactly what Ministers may do at election time. That call was made at the time and I understood it was being followed up. Has there been any revision of the code to make it more specific on what Ministers and Ministers of State may do at election time?
It is a matter for the commission in the first instance to investigate such matters when they arise. There is no point in having a commission with strong powers, as it has, if they are investigated by somebody else. Depending on a particular finding, and not wishing to mention a particular case, if any complaint is made the commission has to carry out the investigations. In the cases the Deputy mentioned, the commission made a ruling and received an apology but the commission has full powers to investigate and then make a ruling on what should happen.
In reply to Deputy Sargent, it is important to make the point that after the issue was brought to my attention highlighting requirements in the code of conduct regarding the uses of official facilities, I pointed out the ruling of the commission to all my ministerial colleagues and the restrictions that are in place. That was the first election in which this arose but those restrictions now apply.
Deputy Rabbitte asked me a question yesterday on which I had not got the note but I have it on this particular file. It concerned the matter of an adviser moving to a job, and I gave a brief answer. I got the matter checked last night. This is a matter which is covered by the Civil Service code of standards and behaviour. Deputy Rabbitte raised this issue in the House last year and I undertook at that stage to raise the point because it is valid and important in terms of clarity for the individual and so as not to imply that somebody was doing something improper. It has been clarified in the September document on the Civil Service code of standards and behaviour.
The law now states that special advisers are subject to the same restrictions as civil servants when taking up outside employment. They are now subject to this, which was not the case previously. Stated briefly, the code requires that if, within 12 months of retiring or resigning, they wish to take up a position with an outside business with which they had official dealings or an outside business that might get an unfair advantage by engaging them, they must inform the appropriate authority of that. They must take the initiative in that regard. The appropriate authority is either the Secretary General of a Department for officers below Assistant Secretary level or an outside appointments board for those at or above Assistant Secretary level. With most people, that will now be an outside appointments board and the approval by an appropriate authority to take up the position may be unconditional or conditions may be attached. They cannot just sail from one job to the other——
Within 12 months.
——and it must be conditional. If they go, conditions could be put on their leaving.
My view is that it is better to have certainty in this matter and the best way to achieve that, beyond doubt, is that they should inform the outside appointments board and then let that board decide whether conditions should be attached, rather than take the chance. At least we would have certainty then and it would avoid conflict. I had a problem myself some years ago with one of my advisers, as Deputy Rabbitte will recall, and it is better that this issue is absolutely clear and that people do this with certainty. More people will move in and out of these jobs and now it is covered in the code, as it is for the Civil Service. Unlike civil servants, however, these people can move in and out of jobs so they should take this particular action. That provides them with certainty, and in terms of the protection of the system.