Seanad Éireann - Volume 168 - 06 December, 2001
Appointments to the Standards in Public Office Commission: Motions.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Nos. 3 to 5, inclusive, are related and will be taken together.
ÜfcMr. Finneran ÜfcMr. Finneran
 Mr. Finneran: I move:
That, pursuant to subsection (2A) (inserted by section 2 of the Standards in Public Office Act, 2001 (No. 31 of 2001)), of section 21 of the Ethics in Public Office Act, 1995 (No. 22 of 1995), Seanad Éireann recommends the appointment of Mr. Justice Matthew P. Smith, a Judge of the High Court, by the President on the advice of the Government to be the chairperson of the Standards in Public Office Commission.
Mr. Cullen Mr. Cullen
Minister of State at the Department of Finance (Mr. Cullen): I thank the House for the opportunity to speak on these three motions. Two of the motions concern appointments to the new Standards in Public Office Commission and the third would have the effect of applying the new Standards in Public Office Act to Members of the Seanad. The motions have been considered by the Joint Committee on Finance and the Public Service and are being referred back to the House.
I will outline some of the main features of the Standards in Public Office Act. The Standards in Public Office Commission, which will be established under the Act, will take over all of the functions of the existing Public Offices Commission. These include functions under the Electoral Act such as those concerning political donations or election expenditure. The new commission will have wide investigative powers regarding so-called specified acts. Specified acts are acts or omissions of public servants or office holders which are inconsistent with the proper performance of the duties of the relevant position, or which would be inconsistent with the maintenance of public confidence in that performance.
The commission will take and investigate complaints in this regard only where it considers the matter complained of to be of significant public importance. While it is a matter for the commission to make a judgment on what that means in any given case, the Act provides that the commission may deem a matter to be of significant public importance if it relates to a benefit or potential benefit allegedly received by a person, where the value of the benefit exceeds £10,000.
The commission, or a committee, will not investigate complaints lodged anonymously. However, where the commission or committee, as the case may be, considers that the circumstances warrant it, it can restrict the disclosure of the complainant's identity where it is necessary or expedient for the commission or committee's investigation of the complaint.
The commission will also hear and investigate complaints from Members or from the public about certain actions of public servants and public office holders. These includes acts or omissions of public servants or public office holders which are inconsistent with the proper performance of the duties of the relevant position, or which would be inconsistent with the maintenance of public confidence in that performance. The com mission will take and investigate complaints in this regard only where it considers the matter complained of to be of significant public importance.
While the commission will be in a position to accept complaints about office holders and a wide range of public servants, similar complaints about Members of the Oireachtas who are not office holders under the Act will need to be made to the relevant Clerk, as happens under the Ethics in Public Office Act. However, if it so determines, a committee will be in a position to ask the commission to investigate an issue and report back to the House concerned.
The Commission will be entirely independent of Government and will enjoy full tribunal powers. The Act provides that it shall be chaired by a judge or a former judge of the Supreme Court or the High Court, who will be appointed by the President on the advice of the Government and following resolutions passed by each House of the Oireachtas recommending the appointment. A former Member of either House, appointed by the Government following resolutions passed by each House, will serve as an ordinary member of the commission. There are four ex-officio members: the Clerks of Dáil Éireann and Seanad Éireann, the Comptroller and Auditor General and the Ombudsman. The provision for appointing a former politician was introduced following a recommendation of the Dáil Select Committee on Members' Interests.
The Standards in Public Office Commission will be able to engage inquiry officers to undertake initial investigations of complaints on its behalf. This will give the commission a mechanism allowing it to determine whether a particular complaint might be frivolous or vexatious or not of significant public importance. In cases where a minor matter is the subject of complaint and the commission does not believe it justifies the full weight of an investigation by it, the complaint may be referred to a committee of the relevant House of the Oireachtas or to the Minister or public body concerned, as appropriate. The commission may also decide not to investigate a complaint at all. These provisions should avoid a situation developing where the commission is swamped with investigations of minor matters.
The Act requires that Members of the Houses must furnish a tax clearance certificate in respect of themselves or a partnership in which they are a member within nine months either side of an election. A statutory declaration that the Member's tax affairs are in order would have to be made one month either side of the election. The Act also provides for tax clearance and declarations for persons appointed to positions as senior public officials and for persons seeking appointment to the Judiciary. They would also have to make similar statutory declarations. The commission is empowered to investigate breaches of the tax clearance requirements.
Codes of conduct under the Standards in Public Office Act will indicate standards of conduct and  integrity appropriate to the person or group to whom it relates. A person covered by a code of conduct will be expected to have regard to the code in the course of the performance of his duties and to be guided by it. Where appropriate, a code of conduct will be admissible and can be taken into account in court proceedings or in proceedings before the Committee on Members' Interests of the relevant House or by a tribunal or the Standards in Public Office Commission. This means a code of conduct under the Standards in Public Office Act is to be a substantive and important document and the persons to whom it relates will have to regard it as such.
The Act also makes provision for a level of streamlining of the current requirements for declarations of interests and donations under the Electoral Act, 1997, and the Ethics in Public Office Act, 1995. Members of both Houses laid great emphasise on the importance of streamlining to avoid repetition and the submission of different forms at different stages over a number of months. For example, the dates for the making of statements under both Acts will be brought into line and the overlap in reporting requirements which require certain amounts to be declared both as political donations under the 1997 Act and as gifts under the 1995 Act will be removed. Moreover, it is intended that the forms will issue at the same time from a single source and will be returned in the same way. The Minister for Finance is currently considering a regulation under the 2001 Act to further clarify the position in relation to the destination of forms for the return of Members' interests to ensure that all returns are made through the commission to the clerks. The streamlining provisions of the Act will make compliance with the legislation simpler and less confusing.
It will be of enormous benefit to the commission to have a chairperson with a strong legal background and the Government is therefore pleased to be able to seek the recommendation of the Seanad for the appointment of Mr. Justice Matthew P. Smith as chairperson of the commission. Mr. Justice Smith is an eminent judge with many years' experience on the Circuit and High Courts, having been appointed to the Circuit Court in 1985 and to the High Court in 1998.
It is essential that the commission should understand and appreciate the context in which the political process operates. This will not in any way undermine the independence of the commission but will bring to the commission the special perspective and expertise which comes from service as a public representative. The Government is very pleased that Mr. Liam Kavanagh has agreed to permit his name to be put before the Houses as the Government's nominee for the position of ordinary member of the commission. Liam Kavanagh will be well known to many in this House and to members of the public. He has had a distinguished political career. He was first elected to Dáil Éireann in 1968, having contested a by-election caused by the death of his  uncle, the late Deputy Jim Everett, who had been Minister for Posts and Telegraphs in the inter-party government of 1948-51 and Minister for Justice from 1954 -57. Liam Kavanagh subsequently became a Minister himself and served during the 1980s as Minister for Labour, Minister for the Public Service, Minister for the Environment and Minister for Tourism, Fisheries and Forestry. He was elected to the European Parliament in the first direct elections to that body in 1979. The Government is grateful for his willingness to serve on the new commission and I have no doubt his experience and personal qualities will be of immense value to the commission in carrying out its various functions.
I know that Members will be concerned at what often seems a complexity of arrangements to which they have to adhere. I know also that Members will be anxious to progress this Act as a clear signal of the Houses' intention to ensure the highest standards in public life. The new Act streamlines the situation in a number of respects. I understand that the select committees will be in a position to offer guidance to Members in relation to the Act and I am sure this will be very welcome. The timing of these resolutions is in part to ensure that the committees have as much time as possible before the Christmas recess to offer this guidance and to allow Members of each House to apprise themselves of the position.
The motions will ensure that the necessary appointments are made to get the new Standards in Public Office Commission up and running. The motions in relation to the commencement of the Act will apply the Act to each House of the Oireachtas. Aside from the application of the Act to Members of each House, the Act will commence generally in accordance with the provisions of the Act by Government order on 10 December 2001.
On behalf of the Government, I wish to recommend that its nominees for positions on the commission be approved by the House for appointment by the President in the case of the chairperson and by the Government in respect of the ordinary commission member. I also recommend the motions which would apply the Act to members of this House.
Mr. Manning Mr. Manning
Mr. Manning: I welcome and support this motion. It is an indication that we have come a long way in a very short time. In the past ten years or so the way in which we do our business in politics and the framework within which we operate has changed enormously. Much of that change has been painful and has been the result of things we wish had never happened.
Part of the problem arose from the fact that our Constitution is entirely silent on the question of political parties and seems to regard them as a necessary evil not to be spoken of in front of the children. The Constitution makes no reference to political parties. It is as if the political system operated without them. This is in huge contrast to the German constitution, just 12 years younger  than ours, which lays down the law with very clear guidelines as to how political parties are funded, are accountable and how they must operate with democratic principles and so forth. We need similar legislation to bring together all the rules dealing with parties, but that is not a matter for today.
The Constitution is of very little help to us on the question of how Members of the Houses and senior officials should behave. Until now the Committee on Procedure and Privileges has tried to take responsibility for this area. In the past there was not a great deal of work for the Committee on Procedure and Privileges and issues were generally settled by people accepting the rules of the club and obeying them. However, we live in a very different world today. As long ago as the case of Senator David Norris in the late 1980s, it was clear that the old ways were not enough and that the operation of a committee like Committee on Procedure and Privileges, in dealing with charges made against Members, was going to have to be on a different plane from anything we had experienced before and was fraught with legal difficulties, many of them arising out of constitutional rights which Members rightly enjoyed.
We have been in a difficult situation. The most difficult problem of all is that in dealing with charges made against Members, there is a great lack of proportion. It is not clear whether the ultimate power to expel a Member whose conduct might warrant expulsion rests with the Houses or with the new body. There is a clear constitutional conflict of opinion on this matter. I have been a member of a number of committees which have sought legal and always expensive advice on this question, but I still have not got the answer. It may be a question that can only be settled in the Supreme Court. The Constitution appears to take contradictory positions on the matter.
The motion is a further step on the way to building a properly regulated structure to govern the way in which Members of the Houses and in high positions in Government behave. It is the result of a great deal of thought and debate in various committees. However, I must contradict the Minister of State on one point. He referred to the appointment of a former politician as being the result of a recommendation by a Dáil committee. It may well be, but the recommendation was first made by the Seanad committee and it was subsequently adopted by the Dáil. I was a member of the committee and there were strongly held views on this point. We considered that something was missing in the earlier proposals and that it was important the membership of the commission should include somebody who understood the political process from within, who was retired, disinterested but was capable of giving a political perspective which judges and officials were not in a position to give.
I am delighted Mr. Liam Kavanagh accepted the proposal that he be a member of the com mission. He commands the confidence of all parties in the House, is level headed and has great common sense. He also has much experience, does not get carried away and sees things in proportion. He understands politicians. These qualities are needed in the commission to augment the legal and other skills which the other members will no doubt bring to it.
My only advice to the members of the commission is to adopt a lightness of touch. They are not there to be a prosecution authority but to judge the fairness, substance or otherwise of complaints made to them. A lawyer and former judge who was head of a similar commission in one of the Australian parliaments attended a meeting of the Seanad committee and with relish explained how he had appointed a series of prosecutors and how there was hardly a Member of Parliament or a senior official who had not been investigated by his committee. He conveyed the sense that it was his job to almost drive people out of public life rather than to protect standards or those involved in it.
Members of the commission should bear in mind the conditions under which politicians work and that things are not always as they appear or as they are represented in the newspapers. They should value fairness and take cognisance of the rights to good name and reputation of those, including politicians, who may be investigated. I have no doubt this will be a fair and good commission and that its members will do that.
The Seanad committee is unhappy with the legislation. There may be ambiguity about the definition of related and specified persons. There is also a fear that the legislation may not have been as well drafted as the situation demanded. In correspondence with the Department of Finance the Department assured the committee that everything is correct and that we need have no worries. I am not so sure. I suspect that the first person to be seriously investigated by the commission – I hope it will be a long time away – may mount a successful legal challenge. For the moment we are advised by the Department that all is well. I wish the commission and its members well.
Mr. Finneran Mr. Finneran
Mr. Finneran: I welcome these motions. They have arisen from the belief that in view of recent developments there should be such a commission. The need for the commission does not point the finger at public representatives because, by and large, those elected to public office serve the people well. Any need for an overseeing body is unnecessary for most of those in public life. However, the public demands transparency and that a body such as the commission be in place to consider situations that are inappropriate. It is important to have such a facility rather than rely solely on tribunals of inquiry.
The structure established will be independent of the Government, which is important. Its members will have the knowledge and expertise to consider issues before it in an independent and  objective manner. The inclusion of a member who has served in public life strengthens the commission. I join with Senator Manning and the Minister of State in complimenting the former Minister, Liam Kavanagh, on his appointment. He will bring to the commission a political understanding that will be necessary. I served with him on the former Joint Committee on State-Sponsored Bodies, which he chaired. He is well qualified to be an effective member of the commission. He will enhance it and his deep knowledge of political life will be of benefit.
Senator Manning referred to the Constitution and the situation in Germany. Perhaps in those days we were more innocent or did not investigate dark corners as we should. The German Constitution was drafted 12 years after ours. It is important to bear in mind that the greatest atrocity in history happened in Germany and given that nobody wanted a repetition of what happened, the provisions regarding political parties contained in the German Constitution were necessary. It would be practically impossible to provide extensive provisions on political parties in the Constitution. I doubt if the example in Germany would be appropriate or would operate in a satisfactory manner in this country. This legislation is a practical response.
I also agree with Senator Manning that the commission should not adopt a Ken Starr, witch hunt type of approach. Whatever the wrongs of Bill Clinton, people took the view that Ken Starr was on a personal crusade to prove his allegations. If the wrong people were appointed the commission could embark on a similar crusade. I hope that will not happen and that the various members of the commission will not allow it.
The production of tax clearance certificates is important, even where people are in dispute with the Revenue Commissioners. A declaration of intent should be sufficient, provided there is no avoidance. I am a member of the Joint Committee on Finance and the Public Service which investigated this aspect. I told the committee that, given the small size of the country, a deliberate attempt to discredit candidates during an election by publishing information that they were under investigation by the commission could have the intended effect of tarnishing their reputation and cause them to lose the election. I am still not convinced that protection is provided in this regard and I hope that the commission will consider this issue. If, in the interests of influencing an election, someone were to make a statement or a complaint, there could be consequences for the person about whom that statement or complaint was made. Will penalties be imposed on a person who makes a statement or complaint which is later withdrawn? I am not sure whether provision has been made for such penalties.
The motions before the House are important and I welcome them. Having made demands in that regard, the people will appreciate the establishment of such a commission. Standards must be met by those involved in public life. Public  representatives and public servants have a duty to the people and they must do what is expected of them. I welcome the establishment of the commission because it will bring to the areas of public representation and public service a greater degree of transparency. Let us hope that behaviour about which we have heard in recent years is a thing of the past. While the number of people involved in such behaviour was quite small, what they did has had enormous influence on how people view those involved in public life. There is a cynicism abroad which must be removed and in my opinion the commission will do so.
I commend the motions to the House.
Mr. Costello Mr. Costello
Mr. Costello: I also commend to the House the motion to establish by 10 December the new Standards in Public Office Commission and the other motions before us. I agree with Senator Finneran that it is absolutely necessary to have transparency in public life because that is what the people expect of us. A small number of people have brought the profession of politics into disrepute and, in the public mind, we have all been tainted because of certain abuses that occurred. There is no doubt that we must take the initiative and ensure that proper mechanisms are put in place and that the system is transparent and accountable. This will allow us to state that while there were problems in the past, as a result of which we have all been tarred with the same brush, we have put the commission in place and we intend to move forward.
The process designed to allow us to put our house in order is quite recent. The first legislation relevant to this area, the Ethics in Public Office Act, was introduced only in 1995. The most recent measure enacted is the Standards in Public Office Act, 2001, which has paved the way for the establishment of the Standards in Public Office Commission. These are some of the slow, painful steps we have taken, as a professional body, to ensure that there will be transparency and that we will be accountable. It is extremely important that we should have in place a comprehensive set of procedures over which we can stand in the future.
I hope the commission will either not be used at all or that there will seldom be a need for it to be called upon. In other words, I hope it receives few complaints. The declaration of interests, the tax clearance requirements and the code of conduct set out in the Act and the commission and the guidelines that will be prepared should form a package of proposals that will ensure Judge Smith and his commissioners will have little to do. If these proposals had been in place previously, it is unlikely we would be obliged to deal with the problems currently under investigation by the various tribunals. When they have been put in place, I do not believe many difficulties will arise.
In my opinion, however, there is a constitutional quagmire in terms of how investigations can take place. As Senator Manning stated, a grey area exists with regard to how the specified Acts,  etc., will apply. I am sure members of the legal profession could yet experience a heyday in relation to the complaints received by the commission, the inquiries, decisions and reports made by it and, indeed, the nature of its wide powers. The commission will have extensive powers equivalent to those of a tribunal and questions will be asked about how it will report and the penalties it will impose.
I am delighted that Liam Kavanagh is to be appointed as a commissioner. Liam is probably the best person in the country for the job and I do not say that because he is a member of the Labour Party. Liam Kavanagh has tremendous experience and is a cool, level-headed and cautious person. He will be an ideal commissioner, he will weigh up all the evidence and he will not make decisions lightly. As Senator Manning stated, the original suggestion in this regard emanated from the Seanad. It is important to appoint a former politician as a commissioner because he will ensure matters are properly teased out and supply his fellow commissioners with the enormous amount of valuable information at his disposal.
I am pleased that the commission is being established. I am delighted that we have come this far in dealing with the area of ethics and standards in public life. I hope we will eventually streamline the existing process because people are still confused in terms of the forms they are supposed to complete, etc. The system should be simple and direct and accountable in every sense. There is no doubt we are making progress.
I commend the proposals to the House.
Mr. Coghlan Mr. Coghlan
Mr. Coghlan: I welcome the introduction of these motions and I thank the Minister of State for the overview he provided. There is no doubt that the body we are establishing will be extremely important for our democracy. Its existence will be a tangible sign of our development and maturity and will clearly demonstrate that we are striving to attain the highest goals in regard to standards in public life, and rightly so.
Unlike my learned colleague, Senator Manning, I am neither an academic nor a historian. The Senator touched on a number of important constitutional, legal and other issues, regarding which Senator Finneran and I would concur. No doubt these will be further teased out in due course. I heartily concur with Senators Manning and Finneran in regard to Senator Manning's advice that this commission should have a lightness of touch and not be unnecessarily or unduly overbearing.
I came in to support the appointment of Mr. Justice Smith but more particularly of Liam Kavanagh. There is no more fitting person to be a member of this commission. He is patently an exemplary person. He was a long-time Member of the other House and, I think, is still a county councillor. He was an outstanding Minister and member of the European Parliament, and his  record is without blemish. He is a member of the Labour Party, but we have all long recognised his merit and, unanimously on all sides, we support his proposed appointment. This body requires members of the highest standards and calibre and Liam Kavanagh is truly such a person. I could not say enough good about this man, whom I have known for a considerable number of years. Accordingly, in line with everybody else on all sides of the House, I wholeheartedly and without reservation concur with the recommendation that he be appointed.
Mr. Cullen Mr. Cullen
Minister of State at the Department of Finance (Mr. Cullen): I thank the Senators for their support of the Bill and the motions before the House today. I am happy to acknowledge what Senator Manning said in regard to the role of the Seanad in having a former Member involved. I inadvertently simply set out the structures and formalities, but there is no doubt that the Seanad had a major involvement in the construction of the blue book and I am quite happy to put that on the record.
To answer a specific point raised by most of the Senators, a complaint to the commission 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 who furnishes misleading information to an inquiry officer, the commission or a clerk of the commission. That is very important. Again, I thank the Senators for their support of these motions.
Question put and agreed to.
Mr. Finneran Mr. Finneran
Mr. Finneran: I move:
That, pursuant to subsection (2)(b)(v) (inserted by section 2 of the Standards in Public Office Act, 2001 (No. 31 of 2001)), of section 21 of the Ethics in Public Office Act, 1995 (No. 22 of 1995), Seanad Éireann approves the proposed appointment by the Government of Mr. Liam Kavanagh (being a former member of Dáil Éireann and not being a representative of the European Parliament) to be an ordinary member of the Standards in Public Office Commission.”
Question put and agreed to.
Mr. Finneran Mr. Finneran
Mr. Finneran: I move:
That, pursuant to paragraphs (c) and (d) of section 29(1) of the Standards in Public Office Act, 2001 (No. 31 of 2001), it be hereby declared that that Act, in so far as it relates to–
(a) Seanad Éireann and its members,
(b) the Clerk of Seanad Éireann,
(c) committees of Seanad Éireann and their members and clerks,
 (d) joint committees of Dáil Éireann and Seanad Éireann and their members and clerks, and
(e) subcommittees of any of the committees aforesaid and their members and clerks, shall come into operation on the tenth day of December, 2001.”
Question put and agreed to.
Seanad Éireann 168 Appointments to the Standards in Public Office Commission: Motions.