Dáil Éireann - Volume 655 - 21 May, 2008

Ceisteanna — Questions. - Standards in Public Office.

Deputy Eamon Gilmore 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. [6167/08]

Deputy Enda Kenny asked the Taoiseach if he will amend the code of conduct for office holders; and if he will make a statement on the matter. [7534/08]

Deputy Caoimhghín Ó Caoláin asked the Taoiseach if the code of conduct for office holders is under review; and if he will make a statement on the matter. [7914/08]

  The Taoiseach: I propose to take Questions Nos. 1 to 3, inclusive, 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 it 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.

  Deputy Eamon Gilmore: That is virtually the same answer given by the Taoiseach’s predecessor last October. The Ethics in Public Office (Amendment) Bill has still not been dealt with in this House and the Bill, in any event, deals with somewhat different matters.

11 o’clock

I will ask the Taoiseach about three particular aspects of this issue. In the programme for Government, there is a commitment that an “acceptable buffer period” will be put in place before civil servants or local government officials can take up employment in related areas of the private sector. What will be done about that commitment in the programme for Government? If that buffer period is to be put in place in respect of civil servants and local government officials, will the same apply to office holders? I am conscious, for example, that a former Minister of State, who served in the last Admini[11] stration, went directly from a Department in which he had responsibility for property and construction matters to a lobby organisation representing the construction industry.

In respect of appointments to State bodies, in the existing code there is a commitment that appointments made by Government to State bodies would be based on merit, taking into account the skills, qualifications and experience of the person to be appointed. I ask the Taoiseach how that sits with his predecessor’s acknowledgement that some appointments made to State bodies by his Administration were made on the basis that they were friends?

  The Taoiseach: On the latter matter, the then Taoiseach was making the point that whereas these people had competence to go on these State boards, they were also people he knew. In many cases when I am looking for suitable people for appointment, there are some people whom I never met before who are recommended to me and others whom I know or meet in the course of my duties may impress me and may have a role to play so if they were available they could be appointed.

That one knows or does not know somebody is not the issue, the issue is competence to serve on a board. The fact that one is friendly with somebody should not be a disbarment and by the same token it should not be — this was not suggested — the only criterion involved.

The people who have served on these boards are competent to do so. That issue has been somewhat flogged to death at this stage in terms of trying to misrepresent what the position was and is. That applies to successive Governments. I never commented adversely on anybody who made an appointment on the basis they knew someone. The only time I would ever comment is on the basis of whether I felt the person was competent to do the job. That certainly was not the criteria suggested as being out of order today. If one knows somebody now, there is apparently a problem. It is not a fair comment.

On the codes of conduct, there is currently an arrangement where a retiring public official would get clearance in terms of ensuring a buffer period before taking up a subsequent appointment. All people involved would act ethically and in a proper and appropriate way. The commitment in the programme for Government will be implemented in due course and it is a question of finding a period of time to simply allay any semblance of public concern, which I do not believe is well grounded anyway under present arrangements. The motivation behind that issue is to provide further reassurance. It can be achieved in due course in this Administration.

I have found it to be the case that local government officials or civil servants who have subsequently taken up appointments have done so mindful of their previous public duties. I have total confidence that at no stage would they allow a conflict of interest to arise.

With regard to the Minister of State mentioned by the Deputy, he was quite entitled to take up that appointment and I am aware of no suggestion of any impropriety on his part in taking it up.

  Deputy Eamon Gilmore: The Taoiseach is implying I made statements I did not make. I never claimed that somebody would be disbarred from appointment to a State body because the person happened to know the Minister or the Taoiseach of the day. I was seeking to explore whether the appointments would be made on the basis of merit rather than just purely on the “who you know” principle. I am very glad to hear the Taoiseach stating that the principle he intends to apply in appointments he will make and, presumably, those of his Ministers, will be on the basis of ability, suitability and skills which can be brought to the job. I look forward to assessing all future appointments on the basis of those criteria.

  The Taoiseach: I am sure they will not meet with the Opposition’s unanimous approval.

[12]   Deputy Eamon Gilmore: Not necessarily. These are matters of judgment. The Taoiseach has set a high standard and it is a good measure.

  The Taoiseach: I have followed that in all my public life.

  Deputy Eamon Gilmore: Am I arguing with the Taoiseach?

  The Taoiseach: I hope there is no implication that is a standard I have not lived up to until now.

  Deputy Eamon Gilmore: I am not talking about that. The Taoiseach is rushing the fences. He should wait until we have something to argue about. I am agreeing with him. We are on the same side on this.

  The Taoiseach: The Deputy does not need anything to put forward an argument with me.

  Deputy Eamon Gilmore: The buffer zone is referred to in the programme for Government. I did not make that up as the programme for Government states there will be a buffer zone for local government officials and civil servants before they can take up appointments in the private sector that are related to the jobs they did in government.

  An Ceann Comhairle: It is a kind of Checkpoint Charlie.

  Deputy Enda Kenny: The Minister of State, Deputy Pat Carey, is smiling.

  Deputy Eamon Gilmore: It could well be.

  Deputy Enda Kenny: It is a good job the Ceann Comhairle has not lost his Kerry wit.

  Deputy Brian Hayes: It would be more like purgatory.

  Deputy Eamon Gilmore: With Checkpoint Charlie, it depends on the direction one is going.

  The Taoiseach: We should not go into the Deputy’s past.

  Deputy Eamon Gilmore: I would not venture too far into the Taoiseach’s past either.

  The Taoiseach: I was in west Berlin looking over at east Berlin. I thought I saw the Deputy over there one day.

  Deputy Eamon Gilmore: If the Taoiseach wishes to talk about the past I will do so. There is much colour in all directions. We will have fun on that. The buffer zone——

  Deputy Enda Kenny: Alexanderplatz.

  Deputy Eamon Gilmore: ——is referred to in the programme for Government and the Taoiseach was involved directly in its negotiation so I presume he knows what it means. In respect of people who move out of local government service or the Civil Service, particularly at senior level where this applies, how long will the buffer zone be? Is it intended that there will be one general zone or will there be different buffer zones for different types of employment or offices held by people? I presume that a year after the formation of the Government, some consideration has been given to the matter. The Taoiseach was directly involved in these discussions and I am sure some thought was given at that stage to the length of time involved.

  The Taoiseach: It would be a matter of perhaps some months.

[13]   Deputy Eamon Gilmore: A few months.

  The Taoiseach: Yes. Some months would be a fair assessment as people should not be denied the opportunity to make a livelihood having retired and given loyal service to the State. It is not appropriate for us to suggest, for some reason, a contamination-free zone. It is about simply providing some reassurance that there is a time period in which people can reorganise their lives and move on to something else. I am aware that most civil servants instinctively seek the views of their colleagues, on an informal basis, when they are approached to join the board of a company. This measure will formalise the arrangements and methodologies which, while not in place on a de facto basis, are used in some cases. During my period of service, I have come across just a couple of cases in which inquiries have had to be made to ascertain what would help to avoid any semblance of controversy when a person was being appointed. I do not think one should be disbarred from taking up a position for any more than some months. It may not be possible to enforce a law setting out the areas of activity to which somebody who has retired from service may contribute, whether for monetary compensation or in a voluntary capacity. I do not think it would be practical. We need to ensure that people cannot move into such positions immediately or within a week or two.

  Deputy Enda Kenny: I think the phrase the Taoiseach is looking for is “buffer zone”.

  The Taoiseach: There needs to be some sensible buffer zone.

  Deputy Enda Kenny: What is the current position with regard to the thresholds that are in place to govern the shareholdings that members of the Government and Ministers of State may hold in private companies? I understand that those thresholds, with the thresholds for gifts, were changed recently. Will the Taoiseach update the House on the new levels? The Standards in Public Office Commission, which is responsible for overseeing compliance with the ethics legislation, has asked to be allowed to conduct its own investigations, but that request has been refused by the Taoiseach. Does he intend to revise that decision? Is that still the position? The Standards in Public Office Commission has also called for the introduction of clear standards of behaviour for office holders and civil servants. The standards which are in place in Britain are known as the “seven principles of public life”. I cannot outline the seven principles for the Taoiseach. Has consideration been given to the request made by the Standards in Public Office Commission? Does the Government intend to set out clear guidelines for the patterns of behaviour of Ministers and Ministers of State?

  The Taoiseach: The code of conduct for office holders, which is the subject of Questions Nos. 1 to 3, inclusive, covers the Taoiseach, the Tánaiste, Ministers, Ministers of State, the Ceann Comhairle, the Leas-Cheann Comhairle, the Cathaoirleach of the Seanad and the Leas-Chathaoirleach of the Seanad. The Standards in Public Office Commission generally oversees the implementation of the ethics Acts. It can take the code of conduct for office holders into account when investigating the activities of office holders. That is where it comes into play. It would not make sense to review the code of conduct in advance of the enactment of the Ethics in Public Office (Amendment) Bill 2007, which will amend the ethics framework. The code of conduct will have to be amended to take account of that legislation after it has been enacted. This country’s first ethics legislation, the Ethics in Public Office Act 1995, is not relevant to actions carried out before 1995.

The legislation in respect of which Deputy Kenny is seeking clarification will do three things. First, it will require office holders and Members of the Oireachtas to seek the opinion of the Standards in Public Office Commission before they accept gifts or loans from friends for personal reasons which are, in aggregate, worth more than €2,000 in a calendar year. If the accept[14] ance of the gift or loan is to be permitted, the commission will have to form the opinion, and abide by that opinion, that it will not materially influence the recipient in the performance of his or her duties and functions. Members will be required to seek an opinion from the Standards in Public Office Commission before they receive, or acknowledge the receipt of, a gift or loan that is worth more than €2,000 from a friend.

Second, the legislation will increase the threshold above which a gift to an office holder must be surrendered to the State, unless it is a political donation, a gift given by virtue of another office or a gift from a friend or relative for personal reasons only. The threshold, which is set at €650, will be increased to €2,000. Third, the legislation will increase the threshold for the disclosure of registrable interests from €650 to €2,000. The threshold for income from a trade or profession will be increased from €2,600 to €5,000. The threshold for a shareholding or an interest in land will increase from €13,000 to €20,000. The threshold for a contract to provide goods or services to the public service will increase from €6,500 to €10,000.

The Committee on Members’ Interests of Dáil Éireann and the Committee on Members’ Interests of Seanad Éireann were consulted about the key provisions of the Ethics in Public Office (Amendment) Bill 2007, including all the revised thresholds, in spring of last year. Both committees replied in March 2007. The Seanad committee was in agreement with the proposed changes. The Dáil committee welcomed the proposals as it considered that they would further strengthen the accountability of Members of the Oireachtas to the public in the performance of their official duties and responsibilities. The Whips, in conjunction with the Minister for Finance, will decide when the Ethics in Public Office (Amendment) Bill 2007 will be considered by the House. Those are the issues.

I will comment on the new €2,000 requirement. Members will be required to consult the Standards in Public Office Commission before they accept gifts or loans for personal reasons. The €2,000 figure has been decided on as part of an attempt to strike a balance. The figure needs to be small enough to be meaningful as an ethics requirement, but it also needs to be big enough to ensure that Members of the Oireachtas and office holders do not have to spend time counting and valuing every ordinary gift they receive from friends and that the Standards in Public Office Commission does not have to deal with applications about relatively minor gifts. I think the €2,000 figure represents a fair compromise between these two considerations.

We need to bear in mind that the thresholds have not been increased since they were first introduced in 1995. I accept that minor adjustments were made in 2002, when these figures were converted into convenient euro amounts. The thresholds have not been increased significantly in the 13 years since 1995. The Ethics in Public Office (Amendment) Bill 2007 will set the thresholds for some years to come. It is a question of striking a balance without negating the basic intent of the legislation.

In its 2006 annual report, which was published in the summer of 2007, the Standards in Public Office Commission made various recommendations for changes to the ethics legislation. It proposed that it be given the power to appoint an inquiry officer even if it has not received a complaint. The commission already has the authority to take an initiative to launch an investigation into breaches of the ethics legislation when it considers it appropriate to do so. There is a difference between appointing an inquiry officer and initiating an investigation. At present, the commission can appoint an inquiry officer only when it has received a complaint. Inquiry officers conduct interviews with those who make complaints and other relevant people, request documents, show the complaints to those who are the subject of complaints, detail the evidence to such people and take statements from them etc. They do not make determinations on complaints — they are merely responsible for gathering evidence. However, the commission can [15] ask an inquiry officer for his or her opinion on whether there is enough prima facie evidence to sustain a complaint.

When I was Minister for Finance, I told the House that I did not intend to amend the law to enable the Standards in Public Office Commission to appoint an inquiry officer without first having received a complaint. It is reasonable to require that a complaint be made to the commission before the inquiry process, which can have serious consequences for office holders and senior public servants, can be commenced. Complaints about Members of the Oireachtas who are not office holders are matters for the relevant Committee on Members’ Interests in the first instance. Numerous categories of people, including members of the public and public representatives, are entitled to make a complaint against office holders and public servants to the Standards in Public Office Commission. My attitude is that such complaints can have serious consequences for those who become the subject of inquiry, as I said. I do not believe inquiries should be conducted if nobody has made a complaint. That is fair.

Most of the other amendments to the ethics legislation suggested by the commission are technical. One of them is already catered for in the Ethics in Public Office (Amendment) Bill 2007. Another one is catered for in the Civil Law (Miscellaneous Provisions) Bill 2006, which was recently passed by the Dáil and is currently before the Seanad. I indicated that the Government accepts the rest of the commission’s technical proposals. Amendments to cater for them will be circulated in advance of the Committee Stage debate on the Ethics in Public Office (Amendment) Bill 2007.

  Deputy Arthur Morgan: As I do not often contribute to Taoiseach’s questions — my leader, Deputy Ó Caoláin, is usually responsible for doing so — I wish to take this opportunity to sympathise with those involved in the process every sitting day, including the Taoiseach. I wish all concerned well. I would also like to congratulate Deputy Pat Carey on his appointment as Chief Whip and Minister of State. I hope my best wishes do not cost him his job.

  Deputy Terence Flanagan: I would not bet on that.

  Deputy Pat Carey: There is confidence.

  Deputy Arthur Morgan: I take it from the Taoiseach’s reply to Deputy Kenny that the Government intends to proceed with the Ethics in Public Office (Amendment) Bill 2007. When might it proceed, particularly in light of comments to the media yesterday by Deputy Cuffe who said that the Green Party would be looking for more transparency and a lowering of the threshold rather than an increase in the threshold in the two cases the Taoiseach mentioned, which is from €650 to €2,000 for a gift and the privacy limit for shareholdings is from €13,000 to €20,000? Is the Taoiseach in a position to confirm whether there have been representations from the Green Party in this regard? I note the Government Whip mentioned there had been no representations from the Green Party in respect of this. In light of all the tribunals and the difficulties experienced by people in public life, does the Taoiseach not agree there is a public demand to reduce these thresholds and for more transparency and openness? That is the direction in which we should be going rather than in the opposite direction.

  The Taoiseach: I do not agree we are going in the opposite direction. We are very consistent in what we are trying to do. We are trying to ensure we have arrangements that are reasonable and sensible and that do not require the commission to be involved in issues that would be regarded as being without problem. At the same time we want to have a limit that requires that the issue be dealt with properly. I do not accept that this is going in the opposite direction. We are setting out thresholds for the future as a result of what we have learnt in the past 15 years. The balance needs to be struck here. We came up with a practical and pragmatic [16] approach that meets the requirements of the legislation and ensures that Ministers, officeholders and others do not end up making a technical breach without realising it. It is important that we get clarity on the thresholds and that these be fixed for future years also, which is fair enough.

The level of the thresholds has been a matter of Government decision. Some Deputies may have spoken in a personal capacity or whatever, but the Government is very clear that these are the thresholds that will be applied. These will be the proposals to be put to this House as they were put to the Upper House. We believe as a Government united that this is the best way forward taking all the considerations into account.

  Deputy Leo Varadkar: Regarding the buffer zone as it affects local authority officials, I understand the Taoiseach has not been on a local authority for a long time, if he ever was on one. I was a member of a local authority for some time. I wonder whether the Taoiseach realises why the timeframe needs to be more than a few months. I have examples of this that I can give him. A planning official may be involved in a variation proposal, a local area plan proposal or a development plan review, which naturally through its course takes approximately a year from variation to rezoning to LAP. We cannot allow the poacher to turn gamekeeper whereby the planning official for a particular project might end up working as a consultant for one of the developers or landowners. It is particularly important for planning officials that it is not a tokenistic few months. It needs to be a reasonable time of at least a year and a half or two years. Does the Taoiseach understand there is a particular issue regarding planning officials that might not be the case for Ministers of State, for example?

What is the current code of conduct for Ministers who receive official gifts from representatives of other governments in their capacity as Ministers, in particular when those gifts come from regimes that violate human rights or are undemocratic? Is there any particular code of conduct relating to the receipt of gifts by Ministers from dictators, torturers or murderers?

  Deputy Brian Hayes: Immunity.

  The Taoiseach: On the first matter, I served on a local authority for eight years — I do not know how long the Deputy served on one. My county never had a section 4, by the way. Regarding avoiding conflicts of interest, it is a matter that needs fuller consideration when it comes to the implementation of the proposal. I am not dismissing the possibility of variation of approach depending on the particular responsibility. The purpose is to provide some reassurance. When people leave the public service and move into a related area, I do not accept the suggestion that they can operate as if they were still in loco in the original place and are able to sort out matters from outside in a way that is inappropriate or unethical because that reflects on the ethical position of the new incumbent of the position that was vacated. These decisions are taken quasi-judicially by city and county managers. For planning decisions there are procedures and protocols, and means by which representations can be made.

We do not want to defeat a policy objective that results in public officials moving to the private sector and individuals moving from the private to the public sector. The more interaction and cross-pollination there is, the better for creating a better awareness by everybody of their specific and distinct responsibilities. By trying to deal with one perceived possible issue let us not end up closing off that objective which would also be a good one. It is about striking a balance between various considerations. I do not suggest that the consideration the Deputy makes is not one that needs to be put into the mix. It does need to be put into the mix and it is a matter of judgment then.

[17] At the end of the day the question of ethical behaviour is the responsibility of the individual concerned anyway. Once an official moves into the private sector and certain issues arise, it is open to the person concerned as to what would be regarded as the appropriate thing to do. Perhaps this would form part of the consideration of the buffer zone idea. For example, such a person should not be part of that file in that office and should not engage precisely for the reason the Deputy has given. There are ways and means of doing that without a legislative response. It could be a code of conduct. We need to think the matter through. It is a fair point. I do not dismiss it as there is substance to what he has to say, but we also need to be careful we do not end up throwing out the baby with the bath water.

Regarding the gifts, I will check the protocol on that. Unfortunately, I have not been a great recipient of those from even the most benign of regimes.

  Deputy Eamon Gilmore: Two matters arise from the Taoiseach’s replies to these questions. On the buffer zone I was surprised to hear the Taoiseach say he was thinking in terms of a few months.

  The Taoiseach: Some months.

  Deputy Eamon Gilmore: As Deputy Varadkar said, it can arise that a county manager, director of planning or senior public servant is involved in a particular public project, retires and then starts to work for a tenderer for that project. I understood that the idea of the buffer zone was to have a period of time to allow the kind of turnover that would take place in that kind of case. I was surprised to hear that it is now considered to be some months in duration. With whom has this matter been discussed since the programme for Government was written? Have there been discussions with any of the associations representing senior public servants and bodies representing senior personnel at local government level, for example, to ascertain their views on what might be appropriate?

I also raise the issue of the change in the limits for gifts and the various thresholds for what is to be declared under the standards in public office rules. The original Ethics in Public Office Act contained a provision allowing the Minister to increase those thresholds in line with inflation. I do not think anybody would argue with that, but it seems that what is proposed in the Bill is considerably in excess of inflation. The threshold for interests from a remunerated trade or profession has increased from €2,600 to €5,000, shares increased from €13,000 to €20,000, land from €13,000 to €20,000 and gifts from €650 to €2,000. They are significantly ahead of inflation. Why is that being done, if the original idea was to keep it in line with inflation? Why are the thresholds being increased significantly ahead of inflation?

  The Taoiseach: The reason is one is setting the thresholds not only for this year, but for years ahead. We will not return to this matter every year. It is a fair balance, taking all the considerations into account. It is a judgment call. One could say €1,500, €2,000 or €2,500. The Government felt that was a fair balance taking into account all the considerations and in recognition that this would be the amount for some years hence as well. I do not think it should be a matter of serious contention between us. I have explained the considerations one is trying to take into account. We want something that has efficacy and continued transparency but that is also sensible in the context of where the country is at currently and the future we face. I do not expect everyone to agree with the amounts and amendments may be tabled to the contrary. However, the motivation behind the change is to try to ensure we have thresholds that will serve us for some time to come as well as for the present. It is 15 years since we last looked at those thresholds.

[18] Deputy Gilmore referred to months. I am not aware of the details or whether any discussions have taken place on the matter but it is a good suggestion that we would ask the County and City Managers’ Association and the Association of Higher Civil and Public Servants for their views as they could be helpful to us in finding a modus vivendi that is sensible for everybody. I do not think there is any reticence or refusal on anyone’s part to try to bring in something that would be helpful in ensuring that we do not allow the idea to arise that people are engaged in haphazardly moving from one sector to another in a way that does not take cognisance of the importance of upholding public confidence. This is all about upholding public confidence in the duties of office holders or senior civil holders as they move from one career to another.

The question of ethical behaviour is one for individuals themselves. If one were moving, one would understand or should know the potential conflicts involved. It is up to each individual to ensure he or she does not engage in those files that could be sensitive. Perhaps it might be helpful to have a legislative or code of conduct response to consultations with the various bodies in terms of coming up with arrangements that are regarded as sensible that would meet the requirements of the situation.

  Deputy Enda Kenny: I agree that the upholding of public confidence is absolutely imperative. Does the code of conduct extend to Ministers and Ministers of State? The Garda Síochána is the only buffer zone between the citizen and the criminal and in many ways it has come in for a lot of stick. The Morris tribunal revelations from Donegal did not do the force any good. I agree public confidence should be upheld. Does the code of conduct extend to Ministers of State? The Minister of State, Deputy McGuinness, let fly at the Garda and said it was not able to do its job and that it was not sufficiently experienced. Does it comply with code of conduct behaviour for office holders to publicly attack the only body we have to protect the ordinary citizen from the criminal? Does the Taoiseach agree with that, or does he hold the view that a Minister of State should practice a code of conduct that does not run down the upholding of public confidence in, for example, the Garda, which is something we all have to deal with? If any Minister has a difficulty in that regard, he could bring it to the attention of either the Garda Commissioner or directly to the Minister for Justice, Equality and Law Reform instead of broadcasting it on the public airwaves and adding to a high degree of cynicism that exists in many quarters about the only force we have to protect the ordinary citizen from criminal activities and the threat and the consequences of criminality.

  Deputy Charles Flanagan: To quote the Minister of State directly, he said it was “a national disgrace”.

  An Ceann Comhairle: The Taoiseach should be allowed to speak.

  The Taoiseach: The code of conduct for office holders covers the Taoiseach, the Tánaiste, Ministers, Ministers of State, Chairs and Vice Chairs of the Dáil and Seanad. Its purpose is to indicate how people are expected to conduct the performance of their public duties. On the specific matter raised by Deputy Kenny, the Minister of State, Deputy McGuinness, was speaking in a personal capacity.

  Deputy Charles Flanagan: He was speaking to a newspaper.

  The Taoiseach: Let me just make the point. He has been closely associated with families who have been involved in this issue, especially the Dollard family. He made the point that some of the comments were out of context. It was not intended to be a denigration of the Garda or its activities. It is important to be careful that in reflecting the frustrations of families who find [19] themselves in the terrible situation involving missing persons and not knowing where they are — I have one family in my own constituency in mind in that respect — that it is not suggested that the Garda is not making every effort to sort out the problem. I accept totally that it is doing so. Sometimes reflecting the frustrations of families can indicate something to the contrary, which was not the intention of the Minister of State. I would ask that this be accepted. I know that the Commissioner accepts there was no such intention on the Minister of State’s part.